Grace v. State
| Decision Date | 27 August 2004 |
| Citation | 899 So.2d 302 |
| Parties | Johnny C. GRACE, Jr. v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
Gregory A. Dagian, Abbeville, for appellant.
Troy King, atty. gen., and G. Ward Beeson III, asst. atty. gen., for appellee.
Johnny C. Grace, Jr., was convicted of two counts of robbery in the first degree, violations of § 13A-8-41, Ala.Code 1975. Grace was sentenced to 99 years' imprisonment on each count; these sentences were to be served concurrently. This Court affirmed Grace's convictions and sentences in an unpublished memorandum. See Grace v. State (CR-02-1017, Oct. 24, 2003), 897 So.2d 1247 (Ala.Crim.App.2003) (table).
Grace appeals, challenging the trial court's restitution order. As noted below, the final restitution order was entered after this Court issued its unpublished memorandum on Grace's direct appeal. Because of the nature of the proceedings in this case, we will consider Grace's challenge to the restitution order in this appeal.1 See Rule 4(a)(1), Ala. R.App. P.; Rule 26.11(a), Ala. R.Crim. P. See, generally, Ex parte Fletcher, 849 So.2d 900, 906-07 (Ala.2001) ().
Grace contends that the trial court exceeded its authority in ordering him to pay restitution to the victims of the crime, and to the Crime Stoppers community program and the Governor's office, both of which offered a reward to assist in solving this crime. For a full understanding of Grace's claims, we set out the following timeline:
10/17/02 Grace was convicted of two counts of robbery in the first degree. (C. 23.) 10/24/02 The district attorney ("DA") filed a motion for restitution, seeking $4,500 for the losses incurred by the victims, $1,000 assessment to Crime Stoppers "for funds paid out following the receipt of information leading to the arrest of" Grace. (C. 1, 23.) 11/19/02 The DA filed an amended motion for restitution, detailing the losses suffered by the victims in the total sum of $6,750, and seeking a $1,000 award to Crime Stoppers, and seeking a $5,000 award to "the State of Alabama ... for the reward paid by the Governor to the informer for information leading to the arrest and conviction of" Grace. The DA also filed a motion to order payment of the Governor's reward. (C. 3, 5, 23.) 12/03/02 Grace filed a request for a restitution hearing, contending that all codefendants were jointly liable for the restitution, that proof was required of the amounts the DA claimed as restitution, and that no sums should be paid to Crime Stoppers or the Governor's office. (C. 6, 22.) 12/30/02 The DA filed a request for hearing, withdrawing its request for the restitution for the Governor's reward, and requesting that the trial court determine how much of a reward, if any, the informant was entitled to prior to a restitution hearing, pursuant to § 15-9-4, Ala.Code 1975. (C. 8.) 01/23/03 The trial court sentenced Grace to 99 years' imprisonment on each count and directed that he pay a fine of $5,000 and a victim's compensation assessment fee of $1,500. (C. 24, 25.) 02/18/03 The DA filed another amended motion for restitution, notifying the trial court that some of the property for which the victims sought compensation was in the possession of the sheriff, and further requesting the trial court to award the victims $450 for attorney fees they incurred in preparing documents related to this matter. (C. 9, 25.) 02/19/03 Grace filed a motion to reconsider sentences, a motion for a judgment of acquittal, a motion in arrest of judgment, and a motion for a new trial. (C. 24.) 03/07/03 The trial court's docket entry stated: "All motions denied." (C. 25.) The trial court made a separate docket entry denying Grace's posttrial motions. (C. 24.) 05/22/03 The DA filed a motion for clarification of the trial court's restitution order noting that "[t]he Circuit Clerk has indicated that restitution was not ordered in this ... case"; noting that on March 7, 2003, the trial court "issued an order directing that `all motions are denied'"; noting that the trial court did not conduct a restitution hearing; requesting the trial court to clarify whether the DA's restitution motions were included in the trial court's order denying all motions; and requesting the trial court to award restitution to the victims in the sum of $5,121.83, to award restitution to Crime Stoppers in the sum of $1,000 and to award restitution to the Governor's office in the sum of $5,000. (C. 10-11, 25.)
05/22/03 The trial court entered an order setting aside its March 7, 2003, order disposing of all motions and granting the DA's motions for restitution. (C. 25.) 05/28/03 Grace filed an objection to the award of restitution without a hearing, contending that he had previously requested a hearing, and arguing that any further amendment to a restitution order was time-barred. (C. 12, 26.) 06/05/03 The trial court entered an order, setting a restitution hearing for August 25 2003, but the hearing was continued. (C. 26.) 10/24/03 The Alabama Court of Criminal Appeals upheld the convictions and sentences. (C. 26.) 12/05/03 A hearing was held on the pending restitution motions. (R. 1.) 12/16/03 The trial court entered an order, directing Grace "to pay restitution" to the victims in the sum of $5,121.83, "to reimburse" Crime Stoppers in the sum of $1,000, and "to reimburse" the Governor's office in the sum of $5,000. (C. 14, 26.) 01/09/04 Grace filed a notice of appeal from the trial court's restitution order. (C. 15, 26.)
At the restitution hearing on December 5, 2003, Grace, through counsel, argued that the trial court lacked jurisdiction to address the State's restitution claims because, Grace contended, any claim for restitution was "time-barred" and Grace argued that Crime Stoppers and the Governor's office were not "victims" and were, thus, not entitled to restitution. The trial court granted the State's request for restitution, and ordered that Grace pay $5,100 to the victims of the crime, $1,000 to Crime Stoppers, and $5,000 to the Governor's office. Grace reasserts those arguments in this appeal.
Grace's first argument is that the trial court lacked jurisdiction to modify or to amend its original restitution order. Grace contends that the State was required to submit its motion for restitution within 30 days of sentencing, pursuant to Rule 24.1(b), Ala. R.Crim. P., and contends that, pursuant to Rule 24.4, Ala. R.Crim. P., any such motion filed by the State was denied as a matter of law 60 days after it was filed. In this case, the record reflects that the district attorney filed a motion for restitution before sentencing and that the trial court did not rule upon the restitution motion until four months after sentencing. The trial court subsequently withdrew its restitution order, based upon Grace's objection that a hearing had not been held as required by § 15-18-67, Ala.Code 1975, and entered its final restitution order in December 2003, 11 months after sentencing.
As the State points out, Grace's jurisdictional argument has previously been determined adversely to him. See Hill v. Bradford, 565 So.2d 208, 210 (Ala. 1990) (). As we recently stated in State v. Redmon, 885 So.2d 850, 853 (Ala.Crim.App.2004), "[a] trial court retains jurisdiction to hold a restitution hearing more than 30 days after the date of sentencing." We also observed in Redmon, quoting in part from Roberts v. State, 863 So.2d 1149, 1155 (Ala. Crim.App.2002), that restitution was mandatory and that the trial court is "`statutorily obligated'" to determine restitution "to fully compensate all victims." 885 So.2d at 853-54.
Grace, in his reply brief, argues that the language in Hill, which this Court relied upon in Redmon, was dicta and has no precedential effect. Grace also contends that Redmon is distinguishable because in Redmon the trial court reserved the issue of final restitution. However, the language in Hill is not dicta; rather, it was the Alabama Supreme Court's response to one of the issues raised by the defendant, i.e., whether the trial court lost jurisdiction to impose restitution where the restitution order was entered more than 30 days after the defendant was sentenced. Furthermore, while the trial court in Redmon did initially retain jurisdiction to determine final restitution (pending the outcome of medical treatment for one of the victims), the trial court later declared that it had lost jurisdiction to impose additional restitution after 30 days. Redmon was before us on the petition for a writ of mandamus filed by the State. We granted the writ and directed the trial court to determine what restitution was owed, even though more than 30 days had passed since sentencing.
Grace, in his reply brief, cites Jolly v. State, 689 So.2d 986 (Ala.Crim.App.1996), in support of his argument. In Jolly, this Court stated that the trial court's imposition of restitution more than 30 days after sentencing was appropriate on the authority of Hill. While we expressed reservations about the Alabama Supreme Court's decision in Hill, we noted that we were bound by that opinion. Jolly, 689 So.2d at 987-88. Since our opinion in Jolly, the Alabama Supreme Court has not seen fit to change its ruling. We recently reiterated our intention to follow the precedence of the Alabama Supreme Court by again applying Hill in Redmon.
Based upon Hill and its progeny, we conclude that the trial court did not lose jurisdiction to impose restitution and that the trial court's restitution order entered 11 months after sentencing was not untimely.
Grace next argues that Crime Stoppers and the Governor's office...
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