Fore v. State

• Decision Date: 21 March 2003
• Citation: 858 So.2d 982
• Parties: Jason Phillip FORE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

858 So.2d 982

Jason Phillip FORE v. STATE of Alabama.

CR-01-1506.

Court of Criminal Appeals of Alabama.

March 21, 2003.

Meredith Shay Peters, Andalusia, for appellant.

William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., and Andy Scott Poole, asst. attys. gen., for appellee.

SHAW, Judge.

Jason Phillip Fore appeals an order of the Covington Circuit Court directing him to pay $10,337.91 in restitution to, or on behalf of, Martha Jill Holland. We affirm.

Fore pleaded guilty to leaving the scene of an accident resulting in injury, a violation of § 32-10-1, Ala.Code 1975 (count I); reckless driving, a violation of § 32-5A-190 (count III); and attempting to elude a police officer, a violation of § 32-5A-193 (count V). He received a reverse-split sentence for his conviction under count I (two-and-a-half years' probation¹ followed by two years in prison); 90 days in the county jail for his conviction under count III; and six months in the county jail for his conviction under count V. All of the sentences were to run concurrently. In addition, Fore's driver's license was suspended, he was ordered to pay various fines, to participate in various rehabilitation programs, to pay certain costs and fees, and to pay $10,337.91 in restitution— $51.57 to Holland; $172.06 to Holland's doctor; and $10,114.28 to the Alabama Crime Victims Compensation Commission ("ACVCC"), as reimbursement for its payment of funds to Holland.

Fore's convictions arose out of charges stemming from a March 13, 2000, hit-and-run automobile accident involving Holland and her five-year-old daughter. Holland, who had had back surgery before the accident, suffered personal injuries and had to receive medical care as a result of the accident. Between July 19, 2000, and January 22, 2001, Holland received $10,114.28 from the ACVCC to assist her with expenses relating to her injuries. On March 9, 2001, Holland settled a civil action against Fore that she had filed on July 20, 2000; as part of that settlement she received $25,000, representing the limits of Fore's automobile insurance coverage, and she executed a release of liability. Fore entered his guilty pleas on April 19, 2001. A restitution hearing was held on July 16, 2001, where defense counsel argued against the "imposition of restitution at all." (R. 71.)

The trial court entered the following order:

"This cause came on for a restitution hearing following [Fore's] previously-entered guilty plea. The Court heard the evidence presented and the arguments of the attorneys and based upon the same, the Court finds and Orders as follows:

"(1) That [Fore] caused the victim in the case, Martha Jill Holland, to suffer monetary loss as a result of his criminal conduct.

"(2) That as a part of a civil suit arising from the same facts, parties and circumstances, the victim's net recovery from [Fore's] insurance carrier was $14,700.00 after attorney fees and costs were deducted from a settlement in that case for the total of $25,000.00.

"(3) That a portion of the settlement amount in the civil matter was paid for the pain and suffering of the victim in this cause.

"(4) That the victim received, or had paid on her behalf, in addition to the civil suit recovery, $10,114.28 from the [ACVCC], which [Fore] should be required to repay as restitution to that entity.

"(5) That no part of the amount paid by the [ACVCC] was paid for the victim's pain and suffering and that all of that amount was paid for actual expenses of the victim caused by [Fore].

"(6) That the issue concerning the civil release and its alleged bar against this Court ordering further restitution by [Fore] is resolved in favor of the victim insomuch as this Court finds that this victim was sufficiently damaged to warrant a finding that she is entitled [to] more compensation than was paid in the civil settlement after allowance for a portion of that amount as payment of pain and suffering which cannot be compensated through restitution.

"Therefore, it is, hereby,

"Ordered that [Fore], in addition to any other fines, costs or assessments previously ordered in this cause, shall pay as restitution in this cause the sums of $51.57 to Martha Jill Holland and $172.06 to Dr. D.E. Salisbury and $10,114.28 to the [ACVCC]. Said amounts shall be paid by [Fore] to the Clerk of this Court for transmittal to said recipient.

"It is further Ordered that this Court's previous order of June 15, 2001, wherein probation was granted through a reverse-split sentence is not affected by the present order and [Fore] shall make all restitution payments by the date set forth therein."

(C. 180-82.)

Fore does not appeal his convictions. We find the following two issues relating to the restitution order to be dispositive of this appeal: (1) Whether the release executed by Holland as part of the settlement of her civil action barred the trial court from ordering any restitution; and (2) whether Fore was legally obligated to reimburse the ACVCC for its payment to Holland.

Recently, this Court, in Roberts v. State, [Ms. CR-00-2134, November 22, 2002] ___ So.2d ___ (Ala.Crim.App.2002), held:

"Based on our examination of the [Restitution to Victims of Crimes Act, § 15-18-65 et seq., Ala.Code 1975], we conclude that restitution is not a claim that belongs to the victim; it is an important measure that the circuit court is statutorily obligated to employ as part of criminal sentencing—a measure that has both salutary remedial and rehabilitative characteristics. Restitution is a part of the criminal sentence rather than merely a debt between the defendant and the victim. Although one of the purposes of restitution is to make the victim whole, payment of restitution also advances the rehabilitative purposes of sentencing. For these reasons, and because the State was not a party to the release between Roberts and the parents, the release did not prevent the circuit court from ordering restitution to the parents. Private parties cannot settle a civil claim and thereby agree to waive the subsequent application of a criminal statute. Our conclusion in this respect is consistent with decisions from other jurisdictions that have considered this issue. See, e.g., State v. Iniguez, 169 Ariz. 533, 821 P.2d 194 (Ariz.Ct.App.1991); State v. Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Wis.Ct.App.1999); State v. Applegate, 266 Kan. 1072, 976 P.2d 936 (1999); Abeyta v. State, 42 P.3d 1009 (Wyo. 2002); People v. Maxich, 971 P.2d 268 (Colo.Ct.App.1998); and State v. Kirby, 818 So.2d 689 (Fla.Dist.Ct.App.2002). We find the following discussion in People v. Bernal, 101 Cal.App.4th 155, 160-63, 123 Cal.Rptr.2d 622, 625-28 (Cal.Ct. App.2002), to be particularly persuasive:

"`Although the record is ambiguous, it appears that the trial court based its ruling that respondent had satisfied his restitution obligation on the probation report, which stated: "[T]he defendant may be relieved of any restitution owed through probation if the victim signed any waiver forms from defendant's insurance." The trial court received a release signed by Russell "with respondent's name on it."

"`We agree with appellant's contention that the written release did not abrogate respondent's restitution obligation because (1) a release by a victim cannot waive the People's right to have a defendant pay restitution ordered as part of his sentence, [and] (2) the victim would be in an untenable position if he or she had to reject a settlement offer from a defendant's insurance company that covers only a portion of the victim's losses in order to preserve the uncertain possibility that the full amount might be recovered from the defendant....

"`. . . .

"`A restitution order has objectives beyond simply indemnifying the victim. It also seeks to rehabilitate the defendant and deter [the] defendant and others. (People v. Crow (1993) 6 Cal.4th 952, 957, 26 Cal.Rptr.2d 1, 864 P.2d 80.) "Among other things, California's restitution law ensures that amends are made to society for a breach of the law, serves a rehabilitative purpose, and acts as a deterrent to future criminality. [Citations.] Restitution `is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.' [Citations.]" (People v. Moser (1996) 50 Cal.App.4th 130, 135-136, 57 Cal.Rptr.2d 647.)

"`While a settlement agreement with, and release of, a defendant's insurance company may reflect a victim's willingness to accept the amount paid in full satisfaction for all civil liability, it does not reflect the willingness of the People to accept that sum in satisfaction of the defendant's rehabilitative and deterrent debt to society. A restitution order pursuant to a defendant's plea is an agreement between the defendant and the state. (People v. Pitts (1990) 223 Cal.App.3d 606, 872, 273 Cal.Rptr. 757.) The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence.

"`Furthermore, the amount ordered as restitution need not mirror what a victim might obtain in a civil action. "There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action...." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, 43 Cal.Rptr.2d 681, 899 P.2d 67.) Since the categories of loss recoverable by restitution and the dollar amounts ordered are not identical to the

...