Moore v. State

• Decision Date: 10 May 1996
• Docket Number: CR-95-0051
• Citation: 706 So.2d 265
• Parties: Ernest Griffin MOORE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 265

706 So.2d 265

Ernest Griffin MOORE v. STATE.

CR-95-0051.

Court of Criminal Appeals of Alabama.

May 10, 1996.

Opinion on Return to Remand

Sept. 27, 1996.

Opinion on Second Return to Remand

Feb. 28, 1997.

Rehearing Denied June 20, 1997.

Certiorari Denied Oct. 17, 1997

Alabama Supreme Court 1961599.

C. Michael Smith, Mobile, for appellant.

Jeff Sessions, atty. gen., and Yvonne Saxon, asst. atty. gen., for appellee.

C. Michael Smith and Suzanne Paul, Mobile, for appellant (On return to remand and on 2nd return to remand).

Jeff Sessions, atty. gen., and Yvonne Saxon, asst. atty. gen., for appellee (on return to remand).

Bill Pryor, atty. gen., and Yvonne Saxon, asst. atty. gen., for appellee (On 2nd return to remand).

PATTERSON, Judge.

Ernest Griffin Moore was indicted by a Baldwin County grand jury in five separate indictments for knowingly obtaining property by deception in the first degree in violation of § 13A-8-3 of the Code of Alabama 1975. These indictments stemmed from Moore's activity as a partner in a partnership engaged in residential construction and remodeling in the Gulf Shores area. The victims alleged that money advanced to the partnership was not properly spent. After a plea bargain, in which Moore agreed to compensate all of the victims of the offenses charged in the five indictments, ¹ four of the indictments were nol-prossed, and on March 13, 1995, Moore pleaded guilty to one count. Moore received a 10-year sentence; that sentence was suspended and he was placed on five years' supervised probation and was granted permission to move to Florida to secure new employment.

At the subsequent restitution hearing, Moore was ordered to pay restitution of $144,933.25 in monthly installments of $2,000. Moore raises seven issues in this appeal from the restitution order: (1) Whether the trial court erred in finding that the damage claimed had been proximately caused by Moore's conduct; (2) Whether the trial court erred in awarding restitution in the amounts claimed by the victims because, Moore argues, the damages they are claiming are not damages recoverable under the Alabama Restitution to Victims of Crimes Act; (3) Whether the trial court erred by awarding restitution allegedly without legal evidence of the precise damages claimed; (4) Whether the trial court erred by failing to set forth the facts and circumstances underlying its restitution order; (5) Whether the trial court erred in ordering restitution in an amount and in installment payments that allegedly vastly exceed the defendant's ability to pay; (6) Whether the trial court allegedly failed to exercise any discretion when it ordered restitution in the exact amount requested by the claimants; and (7) Whether the trial court erred by ordering restitution when the claims of the victims allegedly arose out of breaches of contracts that, he argues, should have been resolved through civil actions.

In reviewing these claims, we are mindful of the discretion vested in the trial court. "The particular amount of restitution is a matter which must of necessity be left almost totally to the discretion of the trial judge. That discretion should not be overturned except in cases of clear and flagrant abuse." Clare v. State, 456 So.2d 355, 356 (Ala.Cr.App.1983), aff'd, 456 So.2d 357 (Ala.1984). However, for this court to properly review the actions of the trial court for abuse of discretion, the trial court must comply with the statutory requirements set forth in § 15-18-69. That section states, that following a restitution hearing, "[t]he court shall thereafter enter its order upon the record stating its findings and the underlying facts and circumstances thereof." (Emphasis added.) In this case, the trial court's restitution order does not include a recitation of the underlying facts and circumstances that led to the resulting order.

This court will review a properly drafted restitution order with the purpose of the Restitution to Victims of Crimes Act in mind. The Legislature intended "that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof." § 15-18-65. However, before there can be any recovery, the criminal activity must be the proximate cause of the pecuniary loss, damage, or injury. See Butler v. State, 608 So.2d 773, 775 (Ala.Cr.App.1992); Strough v. State, 501 So.2d 488, 491 (Ala.Cr.App.1986). Also, the victim must actually suffer pecuniary loss, damage, or injury. Restitution serves a compensatory function and cannot be used as a punitive measure; therefore the amount of restitution cannot exceed the actual loss. Ex parte Clare, 456 So.2d at 358 (Ala.1984).

At a restitution hearing, the burden is on the State to prove disputed facts by a preponderance of the evidence. See Harris v. State, 542 So.2d 1312, 1314 (Ala.Cr.App.1989). In this case, there is uncontradicted evidence that Moore had in fact spent at least some of the money advanced to him on the victims' projects. If Moore reasonably and in good faith expended some or all of the funds advanced to him by the victims on the respective victim's projects then those amounts should not be considered as a pecuniary loss, damage, or injury resulting from Moore's criminal conduct. Based on the record before us, we are unable to determine whether the awards in the restitution order erroneously included restitution to the victims for expenditures for which Moore should have received credit. As an example and to illustrate the quandary this court is placed in when the trial court does not enter its order "upon the record stating its findings and the underlying facts and circumstances thereof," we will explore the facts supporting the claim of one of the victims--Robert Malone.

Malone submitted a restitution affidavit to the trial court that was admitted into evidence as State's exhibit one. The total claimed in the affidavit was $65,830. This amount represented "PROPERTY EXPENSES--$54,970" ("Cost to build house $126,290 [less] contracted cost $69,320"); ² "MEDICAL EXPENSES--$860" ("Doctor visits $200, Medicine for hypertension $660"); and "OTHER EXPENSES--$10,000" ("Interest on $51,000 for 2 years").

Malone testified at the hearing that he had advanced Moore $25,000 and that an additional $27,000 in unpaid bills had been incurred by the time that Moore "left and disappeared." Although Malone testified that it was his understanding that only about $500 of his $25,000 advance was expended on his project, he also admitted that he really did not know how much of the $25,000 was actually spent on his project. The record includes evidence that strongly indicates that Moore had paid an unascertained amount to Gulf Shores for building permits, had paid other suppliers for lumber, and had paid some subcontractors. However, in awarding the victim the exact amount claimed, the trial court appears to have ignored any expenditures by Moore on the victim's project. We note that Moore was not even credited with the $500 that admittedly had been expended on Malone's project.

Moreover, we are not even certain what the total eventual cost of Malone's project was. Malone testified that the house was being built for resale and that once it was built he resold the house for $83,000. On direct examination the following ensued:

"[Malone]: "By the time we completed the house our total costs over and above what we had contracted with the purchasers of that home was $54,970.

"[The prosecutor]: Let me stop you there. That was the amount, $54,000, that you had to pay to complete the job.

"[Malone]: Yes."

Taking into account the testimony quoted above and Malone's restitution affidavit, the evidence establishes three different figures for the cost of construction arrived at by different methods. First, Malone's affidavit claims that the cost of building the house was $126,290. ³ Second, his original testimony on direct examination was that his cost was $54,970 over what he resold the house for which would make the eventual cost of the house $137,970. ⁴ Third, when asked for clarification of the $54,970 in the next line of his testimony he states that his cost of completion was $54,000. If the cost of completion refers to the amount of money expended after the initial $25,000 advance to the defendant, then the cost of the house as completed would only be $79,000. ⁵ Obviously, only one, if any, of these figures is correct. The trial court took the $126,290 as the correct figure, but from the record it is impossible to determine what factors led the trial court to determine that the State had established this figure by a preponderance of the evidence.

Also, the medical expenses that were awarded need an explanation as to why the trial court found them to be related to the criminal activity of Moore. Additionally, the $10,000 interest expense that was awarded is not established by the record as a direct or an indirect loss. Although Malone claimed that he had to borrow $51,000, the record does not reflect such a need, without an explanation of the reasons for determining that it cost at least $51,000 above the original contract price with Moore for Malone to build the Malone house. Put another way, would Malone have had to borrow $51,000 absent Moore's criminal activity?

The failure of a defendant to comply with a restitution order often is a violation of the terms of the defendant's probation, resulting in serious consequences to the delinquent defendant. The restitution hearing and order must comply with the statutory requirements.

As to another matter, the trial court ordered Moore to pay the restitution in monthly installment payments of $2000. The record before us contains ample evidence that this amount is far beyond Moore's financial means. Because the payment of this amount is a term of Moore's probation, an inability to pay that amount would...