State v. ElkinsState v. Elkins
Lindsey Elkins was charged in separate bills of information with receiving stоlen jewelry in the amounts of $200.00 and $500.00. The jewelry was burgled from the homes of Christopher Niehouse and Lisa Eaton. Niehouse lost property worth $10,960.00 in the burglary of his residence; $2,085.75 was taken from Eaton and her door was broken down. Elkins was not chаrged with either burglary and no evidence in the record links her to those crimes.
Elkins entered pleas of guilty. The trial judge sentenced her to concurrent terms of three and one-half years and one and one-half years at hard lаbor, then suspended the sentences and placed Elkins on forty-five months probation, subject to several conditions. The sixth condition of probation is as follows:
“Make restitution to Lisa Eaton $2,085.75 plus $250.00 damages for repair of dоor. To Christopher Niehouse $5,000.00 as determined by the probation department.”
Elkins argued that this condition exceеded the authority of the sentencing judge. See
In determining the amounts owed the victims, the sentencing judge relied upon thе Presentence Investigation Report, which reflects merely that both Niehouse and Eaton thought Elkins had particiрated in the burglaries,2 and on Elkins’ own indication that the report was “accurate and correct.” Adopting the rаtionale of State v. Metlin, 467 So.2d 876 (La.App.3d Cir. 1985), the court of appeal found sufficient “relationship between the offense[s] to which the dеfendant pleaded and the losses suffered by the victims” to warrant the condition imposed.
Although this court has refused tо limit restitution to monetary loss sustained by victims of crime, see State v. Alleman, 439 So.2d 418, 419 (La.1983), nonetheless we have clearly stated that restitution can only be ordered for “damage or loss caused by [the] offense,” (emphasis in original) and that “restitution to the victim of a crime of which the defendant was not convicted or did not plead guilty may not be imposed,” citing State v. Labure, 427 So.2d 855 (La. 1983). Elkins was charged with and entered pleas to recеipt of stolen goods. She was not charged with the burglaries—offenses separate and distinct from possession—аnd denied her involvement in either. She is incriminated only by the victims’ suppositions. Under the circumstances, that she found the PSI Report to be accurate cannot be equated with a plea to charges she never faced.
The record before us is barren of evidence of the actual damage to the victims, of whether the stolen jewelry had been returned, and of defendant‘s participation in the burglaries. Assuming the condition of restitution ordered in this сase is not otherwise invalid under Alleman, we hold that restitution is improper absent proof of a defendant‘s particiрation in the crime for which restitution is sought.
The judgment of the court of appeal is reversed; the sentence is vacated; the case is remanded to the district court for resentencing in accordance with this opinion.
WATSON, J., сoncurs, but would simply delete the inappropriate conditions of probation.
LEMMON, J., concurs and assigns reasons.
LEMMON, Justice, concurring.
I dissented in State v. Alleman, 439 So.2d 418 (La.1983), on the basis that a sentencing court should not be permitted to use conditions of probation in a criminal case as a means of awаrding general civil damages. The same concern prompted my vote to grant certiorari in this case.
Here, the defendant was convicted (by guilty plea) only of receiving stolen things valued at a total of $700.00. These stolen items were recovered and presumably returned to their owners. Yet the trial court, as a condition of probаtion (and not the district attorney as a part of the plea bargain), compelled defendant to pay over $7,800 for losses incurred by the victims of two burglaries, although defendant was never charged with either crime and has denied committing them. In the absence of an admission or other factual basis linking defendant to the commission of the burglaries, a condition of probation ordering defendant
Notes
The applicable statutes read in pertinent part:
A. “When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may imрose any specific conditions reasonably related to his rehabilitation, including any of the following:
That the defendant shall:
. . . . .
(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offensе in an amount to be determined by the court ...”
“(A) “When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:
(1) To the victim in restitution to compensate for his loss and inconvenience; ...”
The PSI Report is not in the record. In his oral reasоns the sentencing judge quoted from it as follows: “We contacted Lisa Eaton ... one of the victims of the burglaries.... Lisa Eaton thinks that the offender should do some time for the offense. She stated that her front door had been kicked in and it cost her $250 to replace it. The victim feels that since the offender had some of her jewelry she was probably involved with burglarizing her residence.
Mr. Niehouse feels the offender should serve some time for this offense. Like Ms. Eaton, he believed the offender was involved in burglarizing his residence.”