State v. Lack

• Decision Date: 06 July 1982
• Docket Number: No. 5555,5555
• Citation: 98 N.M. 500,650 P.2d 22,1982 NMCA 111
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joe Paul LACK, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 22

650 P.2d 22

98 N.M. 500

STATE of New Mexico, Plaintiff-Appellee, v. Joe Paul LACK, Defendant-Appellant.

No. 5555.

Court of Appeals of New Mexico.

July 6, 1982.

Rehearing Denied Aug. 20, 1982.

Certiorari Denied Aug. 20, 1982.

John E. Keithly, Anthony, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

DONNELLY, Judge.

Defendant was convicted by jury of aggravated battery, a third degree felony. § 30-3-5(C), N.M.S.A.1978. Defendant appeals the court's judgment requiring as a condition of probation that he make restitution to the victim for expenses of $1,750.13 for substitute workers to perform victim's job during his convalescence and for $450.00 allegedly paid for health care on behalf of the victim. Defendant has not challenged that portion of the court's order of restitution requiring payment of $3,615.65 for additional health care provided to the victim as a result of the victim's injuries sustained in the assault.

The issues presented by defendant relating to the procedural requisites for imposing a valid order of restitution upon a defendant convicted or adjudicated guilty in a criminal case are a matter of first impression in this jurisdiction.

Following defendant's conviction, the trial judge suspended execution of a basic sentence of three years in the state penitentiary, with the exception of the payment of a $1,000.00 fine and a term of sixty days to be served in the Dona Ana County Jail. The judge also placed defendant on probation following his release from confinement. Among other terms of probation imposed, the court ordered 1. That the defendant make restitution to the victim, Saul Sanchez, and his health care providers in the amount of $5,815.78, which sum shall be paid to the Clerk of the District Court within thirty days of the entry of this judgment and disposition.

3. That the defendant's failure to make the necessary restitution within thirty days from entry of this judgment and disposition shall be grounds for revocation of the defendant's probation.

Subsequent to the entry of the court's dispositional order, defendant moved to modify the judgment. He contended that the order requiring restitution in the absence of a proper determination of the amount of restitution constituted a determination of civil liability without a right of jury trial, or the right to controvert the evidence, and was in violation of defendant's constitutional right to due process. Defendant also asserted that imposition of restitution in the amount ordered was punitive in nature, and was improperly imposed in the absence of evidence to support the court's order and determination of defendant's ability to pay.

Defendant's conviction arose out of a barroom brawl which occurred at the Rincon Bar in Dona Ana County. Defendant hit the victim, Saul Sanchez, in the face with a hammer, necessitating extensive medical treatment and corrective surgery.

At the initial hearing on sentencing, the court indicated that it had a presentence report. Defendant and his counsel reviewed the report and both indicated they did not know of anything that was incorrect in the report. Attached to the presentence report, among other items, were two documents signed by the victim which certified that he paid two individuals the sum of $1,750.13 for labor performed, and a list of medical costs that included $450.00 allegedly paid for health care rendered to him. The trial court initially ordered defendant to undergo a sixty day diagnostic commitment at the state penitentiary pursuant to § 31-20-3(C), N.M.S.A.1978 (Repl.1981). Prior to commencement of the diagnostic commitment, defendant successfully moved the court to reconsider its order. Another sentencing hearing was held on December 14, 1981. At the close of this hearing, the trial judge, in announcing sentence, stated that from the presentence report, "I am satisfied that you can pay the doctor and the hospital bills and the loss of wages that this man has had by being forced to employ someone else to take his position. These total expenses that this man sustained are in the amount of $5,815.78."

Following the court's imposition of sentence, including the requirement of the payment of restitution, the defendant made no response. On December 28, 1981, however, defendant by written motion sought to modify the judgment and disposition on the grounds asserted in this appeal. After a hearing, the trial court denied the motion.

In his challenge to the propriety of the trial court's order of restitution for lost earnings and for reimbursement for certain medical expenses, defendant asserts a two-fold argument: (1) that he was denied proper notice and opportunity to fully contest the amount determined by the court, and (2) that the amount was not within the scope of damages properly allowable as restitution.

I. Notice and Opportunity to Contest Restitution

Defendant first asserts that he was denied proper notice and opportunity to fully contest the amount of restitution ordered by the trial court. Defendant does not challenge the trial court's authority to order restitution as a condition of probation.

By legislative enactment, New Mexico's public policy requires that each violator of the Criminal Code make restitution to the victims of his criminal activities to the extent that the violator is reasonably able to do so. Section 31-17-1, N.M.S.A.1978 (Repl.1981), provides in applicable part:

B. If the trial court exercises either of the sentencing options under Section 31-20-6 NMSA 1978 (entry of an order deferring or suspending sentence), the court shall require as a condition of probation or parole that the defendant, in cooperation with the probation or parole officer assigned to the defendant, promptly prepare a plan of restitution, including a specific amount of restitution to each victim and a schedule of restitution payments. If the defendant is presently unable to make any restitution but there is a reasonable possibility that the defendant may be able to do so at some time during his probation or parole period, the plan of restitution shall also state the conditions under which or the event after which the defendant will make restitution. If the defendant believes that he will not be able to make any restitution, he shall so state and shall specify the reasons. If the defendant believes that no person suffered actual damages as a result of the defendant's criminal activities, he shall so state.

C. The defendant's plan of restitution and the recommendations of his probation or parole officer shall be submitted promptly to the court. The court shall promptly enter an order approving, disapproving or modifying the plan taking into account the factors enumerated in Subsection D of this section. Compliance with the plan of restitution as approved or modified by the court shall be a condition of the defendant's probation or parole. * * * The court thereafter may modify the plan at any time upon the defendant's request or upon the court's own motion. * * *

D. The probation or parole officer when assisting the defendant in preparing the plan of restitution, and the court before approving, disapproving or modifying the plan of restitution, shall consider the physical and mental health and condition of the defendant, his age, his education, his employment circumstances, his potential for employment and vocational training, his family circumstances, his financial condition, the number of victims, the actual damages of each victim, what plan of restitution will most effectively aid the rehabilitation of the defendant and such other factors as shall be appropriate. The probation or parole officer shall attempt to determine the name and address of each victim and the amount of his pecuniary damages.

E. The clerk of the court shall mail to each known victim a copy of the court's order approving or modifying the plan of restitution, including the court's statement, if any, under Subsection C. * * *

F. At any time during the probation or parole period the defendant or the victim may request and the court shall grant a hearing on any matter related to the plan of restitution. (Emphasis added.)

Under the statute cited above, failure of a defendant to comply with the plan of restitution approved or modified by the court may constitute a violation of a condition of probation and parole. The court under § 31-17-1 G., supra, has continuing jurisdiction to modify a plan of restitution or to extend the period of restitution but not beyond the maximum period of probation or parole as provided in §§ 31-20-6, 31-20-7 and 31-21-10, N.M.S.A.1978 (Repl.1981).

It is solely within the province of the legislature to establish penalties for criminal behavior. State v. Mabry, 96 N.M. 317, 630 P.2d 269 (1981). Upon entry of a judgment of conviction for a crime not constituting a capital or first degree felony, and except as specifically limited by statute, see §§ 31-18-16, 31-18-16.1 and 31-18-17, N.M.S.A.1978 (Repl.1981), as examples, the trial court is empowered to defer the imposition of sentence or enter an order suspending in whole or in part the imposition of sentence. § 31-20-3, supra. A trial court may impose conditions of probation as authorized by law. State v. Ayala, 95 N.M. 464, 623 P.2d 584 (Ct.App.1981). Legislative enactment of § 31-17-1, supra, requiring victim restitution is declarative of public policy to make whole the victim of the crime to the extent possible. As observed in State v. Harris, 70 N.J. 586, 362 A.2d 32 (1976), "Restitution in a proper case may ofttimes be a compelling reminder of the wrong done and meaningfully contribute to the rehabilitation process." In State v. Balsam, 130 Ariz. 452, 636 P.2d 1234 (Ct.App.1981), the court similarly stated, "An effective way to awaken appellant's sense of social responsibility and aid in his rehabilitation is to require him to repay...