State v. M. D. J., 15245

• Decision Date: 19 March 1982
• Docket Number: No. 15245,15245
• Citation: 169 W.Va. 568,289 S.E.2d 191
• Parties: STATE of West Virginia v. M. D. J.
• Court: West Virginia Supreme Court

Page 191

289 S.E.2d 191

169 W.Va. 568

STATE of West Virginia v. M. D. J.

No. 15245.

Supreme Court of Appeals of West Virginia.

March 19, 1982.

Syllabus by the Court

A trial judge may order restitution as part of a "program of treatment or therapy" designed to aid in the rehabilitation of the child in a juvenile case when probation is granted under W.Va.Code, 49-5-13 [1978]. Such order, however, must be reasonable in its terms and within the child's ability to perform.

Phillip C. Duff, Huntington, for appellant.

Chauncey H. Browning, Atty. Gen., Fredric J. George, Deputy Atty. Gen. and Dana D. Davis, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice:

This case is before this Court on an appeal from an order of the Circuit Court of Cabell County, entered on July 30, 1980, which revoked the probation of the appellant juvenile, M.D.J., and sentenced him to serve a previously suspended sentence.

On March 5, 1980, M.D.J. was involved in a fight at Huntington High School where he was a student in the 11th grade. A petition was filed that same day in the Circuit Court of Cabell County charging M.D.J. with committing an act of juvenile delinquency. On May 2, 1980, M.D.J. entered a plea of guilty to the act of juvenile delinquency charged in the petition. An order adjudging him guilty of that act of delinquency was entered on May 6, 1980.

A dispositional hearing was held on May 7, 1980. A dispositional order was entered on June 18, 1980. That order sentenced M.D.J. to incarceration but suspended the imposition of the sentence and placed him on probation for 18 months under 11 terms and conditions. Only the eleventh condition concerns us on this appeal. That condition reads in full:

That such probationer shall make restitution to Mary Coen, mother of the victim herein, in the sum of $1500 payable at the rate of a minimum of $100 per month, the first payment of which shall be due and payable on or before the 15th day of June, 1980, and a minimum payment of $100 due and payable on the 15th day of each month thereafter until the sum of $1500 has been paid. In the event the respondent is employed at any time hereafter, he shall pay one-half of his net earnings to the said Mary Coen on the 15th of each month if one-half of his said net earnings exceed the $100 minimum payment. However, in no event shall the respondent pay less than $100 per month.

On June 27, 1980, M.D.J.'s probation officer, Samuel Watkins, filed a petition with the Circuit Court of Cabell County alleging that M.D.J. had failed to meet the conditions of his probation in that he had failed to pay the first installment of $100 dollars under the eleventh condition of his probation. On July 30, 1980, after a hearing, the trial judge revoked M.D.J.'s probation and sentenced him to commitment. This appeal followed.

Generally, restitution is a discretionary condition of probation under W.Va Code, 62-12-9 [1953]. Article 12 of Chapter 62 of the Code, however, does not apply to juvenile cases handled under Chapter 49 of the Code. "[N]othing in this article shall be construed to affect in any way the laws relating to juvenile probation and parole." W.Va.Code, 62-12-21 [1953].

There is no provision in Chapter 49 of the Code analogous to W.Va.Code, 62-12-9 [1953]. The authority by which a trial judge can grant probation in a juvenile case is found at W.Va.Code, 49-5-13 [1978], which provides, in part:

(b) Following the adjudication, the court shall conduct the dispositional proceeding, giving all parties an opportunity to be heard. In disposition the court shall not be limited to the relief sought in the petition and shall give precedence to the least restrictive of the following alternatives consistent with the best interests and welfare of the public and the child: ....

(3) Upon a finding that the child is in need of extra-parental supervision (a) place the child under the supervision of a probation officer of the court or of the court of the county where the child has its usual place of abode, or other person while leaving the child in custody of his parent or custodian and (b) prescribe a program of treatment or therapy or limit the child's activities under terms which are reasonable and within the child's ability to perform....

There is no question that probation cannot properly be revoked if the condition of probation allegedly violated is invalid. Louk v. Haynes, W.Va., 223 S.E.2d 780 (1976). The issue here is whether the eleventh condition of M.D.J.'s probation was a valid condition under W.Va.Code, 49-5-13(b)(3)(b) [1978].

We have found no cases directly on point from a jurisdiction with a statute that uses the same language as W.Va.Code, 49-5-13 [1978]. The State points out that Georgia has held that restitution can be made a condition of probation in juvenile cases. See B. G. v. State, 143 Ga.App. 725, 240 S.E.2d 133 (1977); P. R. v. State, 133 Ga.App. 346, 210 S.E.2d 839 (1974); M.J.W. v. State, 133 Ga.App. 350, 210 S.E.2d 842 (1974). The Georgia statute, however, provides that the trial judge may grant probation "under conditions and limitations the court prescribes." Ga.Code § 24A-2302(b). In P. R. v. State, supra, the court said: "Certainly these 'conditions and limitations' must include the right to order restitution. This right is inherent in the power of the court...." 210 S.E.2d at 840.

In Utah there is a specific provision in the juvenile law which allows a court to "order that the child be required to repair or replace or to otherwise make restitution for damage or loss caused by his wrongful act...." Utah Code Ann. § 78-3a-39(7). The Supreme Court of Alabama has found authority for a court to order restitution as a condition of probation in juvenile cases in statutory language which gives juvenile courts the jurisdiction and power possessed by equity courts and the further power to "make orders for his custody, discipline, supervision, care, protection and guardianship, as, in the judgment of the court will properly conserve and protect the welfare and best interests of the child." Ala.Code tit. 13, § 351; Haymes v. State, Ala., 349 So.2d 1104 (1977). The Alabama statutory provisions are now found at Ala.Code § 12-15-2(f) and Ala.Code § 12-15-71(c). An Illinois court has inferred similar authority from statutory language which allows a judge to impose "other conditions as may be ordered by the court." Ill.Rev.Stat. ch. 37, § 705-3; J. R. v. State, 82 Ill.App.3d 714, 38 Ill.Dec. 99, 403 N.E.2d 114 (1980).

Courts in Pennsylvania, on the other hand, declined to infer authority to order restitution as a condition of probation in juvenile cases from statutory language which provided:

If the child is found to be a delinquent child the court may make any of the following orders of disposition best suited to his treatment, supervision, rehabilitation, and welfare: ... (2) Placing the child on probation under supervision of the probation officer of the court or the court of another state ... under conditions and limitations the court prescribes.

11 Pa.Cons.Stat. § 50-322. See In re Gonzalez, 255 Pa.Super. 217, 386 A.2d 586 (1978); In re Frey, 248 Pa.Super. 322, 375 A.2d 118 (1977); In re Evans, 246 Pa.Super. 430, 371 A.2d 914 (1977). A major factor in the Pennsylvania cases, however, was the enactment of a statute by the Pennsylvania Legislature which allowed a juvenile court to order restitution against the parents of a delinquent child. See 11 P.S. § 2003; Gonzalez, supra, 386 A.2d at 590; Evans, supra, 371 A.2d at 915.

The statutory provision quoted above is now found at 42 Pa.Cons.Stat. § 6352. After the decisions in the Gonzalez and Evans cases the Pennsylvania Legislature amended 42 Pa.Cons.Stat. § 6352 by 1978 Pa.Laws 202, No. 53, § 29. The statute now provides as follows:

If the child is found to be a delinquent child the court may make any of the following orders of disposition best suited to his treatment, supervision, rehabilitation, and welfare: ...

(2) Placing the child on probation under supervision of the probation officer of the court or the court of another state ... under conditions and limitations the court prescribes....

(5) Ordering payment by the child of reasonable amounts of money as fines, costs or restitution as deemed appropriate as part of the plan of rehabilitation considering the nature of the acts committed and the earning capacity of the child.

(6) An order of the terms of probation may include an appropriate fine considering the nature of the act committed or restitution not in excess of actual damages caused by the child which shall be paid from the earnings of the child received through participation in a constructive program of service or education acceptable to the victim and the court whereby, during the course of such service, the child shall be paid not less than the minimum wage of this Commonwealth. In ordering such service, the court shall take into consideration the age, physical and mental capacity of the child and the service shall be designed to impress upon the child a sense of responsibility for the injuries caused to the person or property of another. The order of the court shall be limited in duration consistent with the limitations in ... the 'Child Labor Law.' The court order shall specify the nature of the work, the number of hours to be spent performing the assigned tasks, and shall further specify that as part of a plan of treatment and rehabilitation that up to 75% of the earnings of the child be used for restitution in order to provide positive reinforcement for the work performed.

The effect of the holdings in Gonzalez and Evans has been counteracted by the Pennsylvania Legislature which has specifically authorized restitution as part of a plan of rehabilitation in a juvenile case even though the juvenile's parents may also be liable for restitution under 11 P.S. § 2003. We note that West Virginia and New Jersey, see the discussion of In re D.G.W., in...