410 S.E.2d 123 | Ga. Ct. App. | 1991
Lead Opinion
Defendant Kenneth Dewayne Harris pled guilty and was found
Defendant appeals from the trial court’s order awarding restitution in the amount of $2,296.30, contending that “the trial court’s modification of [his] sentence to increase the restitution was invalid.” Held:
1. Defendant argues the trial court’s order is invalid because, inter alia, the attempted increase in the amount of restitution was ordered both after the term of court in which sentence initially was imposed and more than 60 days from the date sentence was imposed by the judge, in violation of OCGA § 17-10-1 (a). However, Article 1, Chapter 14, Title 17 of OCGA, specifically pertains to “Restitution and Distribution of Profits to Victims of Crimes.” Contained within Article 1 is OCGA § 17-14-12, which pertinently provides: “The ordering authority shall retain jurisdiction to modify a restitution order at any time before the expiration of the relief ordered.” (Emphasis supplied.) The limiting provisions of OCGA § 17-10-1 (a) are to be given
2. Defendant also argues the order is invalid because it increases his punishment after he had commenced serving his sentence. The State does not dispute that defendant had begun serving his sentence at the time the trial court entered its order increasing the amount of restitution to be paid the victims. It also is true, as defendant argues, that “once a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment..” Inman v. State, 124 Ga. App. 190, 192 (183 SE2d 413) (1971). The question then arises as to whether an increase in the amount of restitution, awarded as a condition of probation, is an increase in punishment as argued by defendant, or is but an increase in a non-punitive aspect of the probation portion of the sentence as argued by the State.
Contrary to defendant’s argument on appeal, restitution is not punitive in nature. Rather, the first and foremost purpose of restitution is to compensate or reimburse the victim for his loss, or insofar as it is possible, to return him to the position he enjoyed before the crime was committed against him. Indeed, Webster’s Third New Intl. Dictionary (3d ed. 1981) defines restitution as “an act of restoring or a condition of being restored: and also as “restoration of something to its rightful owner: the making good of or giving an equivalent for some injury. . . .” Consequently, restitution can be ordered paid to the victim to reimburse him for the loss of some physical thing, such as a stolen automobile; it can also be used in an attempt to help the victim recover from the crime as, for example, when a court orders a child or sexual abuser to pay for the victim’s psychological treatment in order to help the victim overcome the effects of the crime. See S. Res. 94, Ga. L. 1986, p. 1203; see also Ledford v. State, 189 Ga. App. 148 (375 SE2d 280) (1988).
Moreover, while restitution is not synonymous with civil damages, there are many similarities between restitution ordered to be paid by one convicted of a crime and damages awarded against a party in a civil trial. The restitution chapter provides that “[d]amages means all damages which a victim could recover against an offender in a civil action, . . . based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium.” OCGA § 17-14-2 (2). “ ‘Victim’ means any natural person or his personal representative or any firm, partnership, association, public or private corporation, or governmental entity suffering damages caused by an of
Based on the foregoing, we find the trial court had authority to modify the restitution order to include the lessor’s damages. The Code sections relating to restitution contemplate a hearing and findings on the amount of restitution due the victim, if any. Cannon v. State, 246 Ga. 754 (3) (272 SE2d 709) (1980). When error in determining the amount of damages was discovered, the proper procedure for correcting the error was to reopen the issue for further evidence and a new finding on the amount of damages, including the lessor’s damages. Clearly, restitution could be ordered for both the lessor and the lessee of the automobile, as both were victims of the defendant’s acts in connection with his theft of the automobile. Since it does not appear from the evidence that the restitution ordered exceeded the damages suffered by the victims, the defendant has not shown that the trial court exceeded its authority. Instead, it implemented the stated policy of this State, which is “that restitution to their victims by those found guilty of crimes is a primary concern of the criminal justice system.” Because the increase in the amount of restitution initially ordered in this case did not constitute an impermissible increase or enhancement of defendant’s punishment, the trial court’s order must be affirmed.
Judgment affirmed.
Concurrence in Part
concurring in part and dissenting in part.
In addition to subjecting appellant to an increase in punishment for reasons hereinafter addressed in detail, the opinion of the majority raises inter alia the following legitimate concerns: (a) The precedent of the majority subjects this and other hapless defendants to genuine threat of repeated increases in the amount of adjudged restitution, years after he or she has been sentenced. In fact, under the precedent established by the majority, such increases can be ordered long after the expiration of any statute of limitation that would have pertained if the victim had elected to utilize the normal judicial avenue of initiation of civil litigation to recover “damages.” As the majority apparently would allow restitution to be increased as long as a probation period is in existence, such an increase could occur a decade or more after punishment was initially adjudged, and long after any evidence favorable to the defendant and relevant to the restitution issue has been lost. I cannot be a part of such a fundamentally unfair procedure, regardless of how appealing it may appear on initial consideration; and, (b) I perceive that henceforth victims, who belatedly learn of this procedural vehicle of open-ended restitution will be applying in substantial numbers to the trial courts to reopen restitution hearings in cases long ago adjudicated to award them reimbursement for their “damages.” Victims’ rights groups will view this procedure, and rightfully so, as now being available to reimburse all late discovered victims — regardless of the impact such procedure will have on an already overly burdened criminal justice system.
Additionally, I am compelled to consider that: (a) If restitution is not an inherent part of “punishment,” then what is it? The majority, protestations notwithstanding, apparently considers it to be some hybrid form of civil or quasi-civil reimbursement and economic recovery for “damages” done, and thus that it can be legally separated from the “punishment” imposed by the trial court in the sentencing process. If restitution is not an inherent part of the punishment adjudged during the sentencing process, what state and federal due process requirements must be met, during the imposition thereof, when a defendant declines to stipulate either that he was responsible for the damages done or as to the amount of “damages” for which reimbursement is claimed? Stated another way, is a defendant now entitled to some form of mini-trial within the criminal proceedings to determine his liability for restitution and the amount thereof? On the other hand, if no such procedure is required, and restitution is not an inherent part of the punishment adjudged during the sentencing process, can we now lay claim to a defendant’s property at any time during a probation period without due process (compare Ga. Const, of 1983,
1. Appellant argues the order of November 1990 is invalid because it increases his punishment after he had commenced serving his sentence. The State in its appellate brief states, “there is ... no dispute that appellant had begun serving his sentence in this case.” However, the State argues, inter alia, that “although restitution has been made a part of the criminal process, it is clearly not punitive in nature”; that the “non-punitive nature of restitution is analogous to that of child support” and should be treated similarly; and, that “modification of a sentence which occurs after service [of sentence] begins, but which does not enhance punishment, is permissible under the Fifth Amendment.”
(a) First it is noted that OCGA § 19-10-1 (j), formerly OCGA § 42-8-34 (d) relates solely to cases of abandonment, (Acker v. State, 184 Ga. App. 321 (361 SE2d 509)) and is inapplicable to the case at bar. (Note: Subsection (d) of OCGA § 42-8-34 was deleted, effective April 3, 1989 by Ga. L. 1989, p. 381, §§ 2 and 3 and added as OCGA § 19-10-1 (j) to Chapter 10 of Title 19 (Domestic Relations — Abandonment of Spouse or Child)). Further, the basic modification provisions of OCGA §§ 17-10-1 (a); 17-10-3 (b); 17-14-12; 42-8-34 (g); and 42-8-38 (c) on their face are not the “functional equivalent” of the provisions of OCGA § 19-10-1 (j) (4) (formerly OCGA § 42-8-34 (d) (4)). See Tillman v. State, 249 Ga. 792, 793 (294 SE2d 516).
(b) Hudson v. State, 248 Ga. 397 (283 SE2d 271) is distinguishable. Hudson, supra, involved modification of an unrevoked suspended sentence in an abandonment case to allow an increase in child support pursuant to Code Ann. § 27-2709 (d) (4) [currently OCGA § 19-10-1 (j) (4), formerly OCGA § 42-8-34 (d) (4)]. See subsection la, above. Further, “[although the payment of monthly child support was made a condition for the suspension of the sentence,” it was determined not to be part of the sentence, but was, in addition to a moral obligation, a statutory duty under Code Ann. § 74-105 (OCGA § 19-7-2). Id. at 398 (1) (a). Conversely, while restitution of victims is
Clearly, the trial judge in his discretion can decline to order any restitution in the criminal sentencing process and make a written finding to this effect. See generally OCGA §§ 17-14-3; 17-14-8 (a) (1); 17-14-10. Restitution, if awarded, also can be less than a victim’s damages (OCGA § 17-14-9), and does not bar any civil action against the offender (OCGA § 17-14-11). Thus, under the law and policy of this state and as recognized by our court in Morrison v. State, 181 Ga. App. 440, 441 (352 SE2d 622), restitution was never even intended to be synonymous with civil damages.
Further, in Hudson, supra, the Supreme Court observed that defendant had not commenced to serve his sentence — it being an unrevoked suspended sentence — and thus was distinguishable from England v. Newton, 238 Ga. 534 (233 SE2d 787), which involved a probated sentence, and Entrekin v. State, 147 Ga. App. 724 (250 SE2d 177), where the suspended sentence had been revoked. In the case at bar, unlike Hudson, appellant’s sentence had commenced to run, a portion of the sentence was probated, and one of the conditions of the probation was restitution. Thus, we find the legal principles expressed in England and Entrekin more persuasive in this instance.
(c) It is a well-established rule that “once the defendant begins to serve his sentence it may not be increased.” England v. Newton, supra at 536, citing Inman v. State, 124 Ga. App. 190 (183 SE2d 413); accord Higdon v. Cooper, 247 Ga. 746 (279 SE2d 451); Howell v. State, 160 Ga. App. 562 (287 SE2d 573); compare Entrekin v. State, supra, with Turnipseed v. State, 147 Ga. App. 735 (250 SE2d 186). Thus, “once a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment.” (Emphasis supplied.) Inman v. State, supra at 192 (1); accord England v. Newton, supra.
The question then arises as to whether an increase in the amount of restitution, even though a condition of probation, is an increase in punishment as argued by appellant, or is but an increase in a non-punitive aspect of the probation portion of the sentence as argued by the State. In Shelton v. State, 161 Ga. App. 524 (2) (289 SE2d 768), although we recognized the imposed fine and restitution were special conditions of probation, we nevertheless characterized them as “punishments.” This characterization is tacitly supported by restitution statutes. In apparent recognition of the punitive effect restitution can
2. The majority, however, concludes that the increase in the amount of restitution did not constitute an impermissible increase or enhancement of defendant’s punishment. I cannot agree with that view under the facts of this case. The victim lessee reported, in a victim impact statement, the loss of the following property allegedly left in the stolen car: a brief case (custom tapestry) ($450); a full length leather coat ($975); a crocodile purse ($400); a two-piece luggage set ($450); and a radar detector ($275). During the initial sentencing proceedings, the trial court, acknowledging “there is some dispute as to the amount of restitution,” elected to schedule a subsequent restitution hearing. At the restitution hearing, the State announced that the victim lessee had “not shown up” and conceded that the amount of claimed restitution “had increased significantly” since the initial police report. The State and appellant thereafter entered a stipulation, which was accepted by the court, that the amount of the victim’s loss was $600. On September 4, 1990, the trial court filed its order of restitution, signed August 29, 1990, ordering restitution in the amount of $600. On September 28, 1990, the victim lessee (who is not a party to this criminal action) filed a motion to modify the restitution order alleging that the lessor of the stolen vehicle had billed (and subsequently sued) the victim lessee for the cost of repairs of damages to the recovered stolen car. Interestingly, the motion does not assert that appellant and not the victim lessee damaged the car, although it does state the victim was in possession of the car for only four to six hours before it was stolen from the “nightclub parking lot.” At the subsequent hearing, the trial court, after questioning the victim lessee’s standing to intervene in the criminal case, ordered the State to argue the victim’s motion to modify the restitution order. After hearing the State’s argument, the trial court ruled that the restitution proceedings would be re-opened. At the re-opened proceedings, the victim lessee was not called as a witness; the only witness called was the claims administrator for the lessor rental car company who had
3. It is also implicit in the holdings of my colleagues in the majority that under OCGA § 17-14-12 (Code Ann. § 27-3012), the trial court has the power to modify the restitution at any time while defendant is on probation. This position becomes apparent when it is noted that the final order of restitution was not issued in this case until November 9, 1990, a different term of the Superior Court of DeKalb County (OCGA § 15-6-3). However, this type of statute, while permitting a trial court to change or modify the terms of that portion of the sentence pertaining to restitution, does not authorize the trial court to increase the punishment imposed either in the same term or, as here, in another term of court, and after appellant has commenced serving his sentence. See England, supra at 536; Turnipseed, supra.
As recognized in Inman, supra at 192, it is considered a violation of the Fifth Amendment prohibition against double jeopardy for a court to increase the punishment once a person has entered upon the execution of his sentence. An increase in restitution is an increase of punishment, which would trigger the Fifth Amendment prohibition against double jeopardy when ordered after the accused has entered upon the execution of his sentence. State v. Bailey, supra; see England, supra; Shelton, supra. This court should not construe OCGA § 17-14-12 in such a manner as to authorize an unconstitutional act. See Mansfield v. Pannell, 261 Ga. 243, 245 (404 SE2d 104).
For the above reasons of law and conscience, although I concur in Division 1,1 am compelled to dissent as to Division 2.1 am authorized to state that Presiding Judge McMurray joins in this dissent.