Wininger v. Purdue University, 79A04-9511-CV-460
| Decision Date | 13 June 1996 |
| Docket Number | No. 79A04-9511-CV-460,79A04-9511-CV-460 |
| Citation | 666 N.E.2d 455 |
| Parties | Brett WININGER, Appellant-Defendant, v. PURDUE UNIVERSITY, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Defendant-Appellant Brett Wininger (Wininger) appeals a trial court order allowing Purdue University (Purdue) to enforce, by means of proceedings supplemental to execution or a writ of execution or garnishment, a restitution order which was part of Wininger's sentence for Criminal Mischief, a class D felony.
We affirm.
Wininger raises three issues, which we restate as:
1. Whether a county court has jurisdiction to enter a restitution order in excess of $10,000.00.
2. Whether an obligation to make payments pursuant to a restitution order as a condition of probation continues after the end of the probationary period.
3. Whether a crime victim must bring a separate civil action for money damages to enforce a restitution order in its favor.
We affirm.
On July 18, 1989, Wininger entered a plea of guilty to a charge of Criminal Mischief, a class D felony. Wininger forced his way into the Electrical Engineering building on the Purdue campus and caused extensive damage to several rooms in the building and to some expensive pieces of equipment in the building. A Purdue employee testified that the replacement or repair cost of the damaged equipment was $93,335.56, and that there was an additional $2000.00 to $2500.00 in damage to the building. That employee was cross-examined by Wininger's counsel, and Wininger's counsel offered to stipulate to the employee's figures regarding the damage amount.
The trial court accepted Wininger's guilty plea and sentenced him to four years in prison. That sentence was suspended, and Wininger was placed on probation for four years. One of the terms of probation was that Wininger make restitution to Purdue in the amount of $95,460.12, with payment scheduled to be 25% of his net income or $20.00 per week, whichever was greater. Wininger made the payments during the probationary period, but did not continue making payments after the probation ended. Purdue sought to enforce the restitution order by proceedings supplemental to execution, and the trial court granted its petition. Wininger appeals.
Wininger first argues that the county court which sentenced him did not have jurisdiction to enter its restitution order because the order creates a judgment lien in an amount over $10,000. A county court has jurisdiction over contract or tort cases where the debt or damage claimed does not exceed ten thousand dollars, IND.CODE 33-10.5-3-1(a)(1) (1993), and it has jurisdiction over all class D felony cases, I.C. 33-10.5-3-1(a)(3). A restitution order is a judgment lien which attaches to the property of the person subject to it; may be perfected; may be enforced to satisfy payments that are delinquent under the order; and which expires in the same manner as a judgment lien in a civil proceeding. I.C. 35-50-5-3(b) (1995 Supp.). Based upon that statutory provision, and Purdue's argument that the lien created by the restitution order is the practical and legal equivalent of a civil money judgment, Wininger asserts that the trial court could not enter a restitution order in an amount greater than a money judgment it could enter in a civil suit.
The limitation on the amount a county court could award in a contract or tort action has no bearing on its authority to enter a restitution order in an appropriate amount in a felony prosecution. In addition to the jurisdiction expressly conferred by statute, county courts have such jurisdiction "as is necessarily implied or incidental to" the statutorily-conferred jurisdiction. Gill v. State, 232 Ind. 36, 39, 111 N.E.2d 275, 276 (1953). In Pitts v. State, 410 N.E.2d 1387, 1390 (Ind.Ct.App.1980), we applied the Gill rule in holding that a county court had jurisdiction to make an habitual offender determination resulting in a thirty-year sentence enhancement, even though the maximum sentence for a class D felony at that time was two years, with up to two years added for aggravating circumstances. I.C. 35-50-2-7(a).
We noted in Pitts that because the county court had jurisdiction over all class D felonies, "it must necessarily possess all requisite authority for conviction and sentencing pertinent thereto." Id. at 1391. Imposition of a restitution order is a form of punishment, Smith v. State, 655 N.E.2d 133, 134 (Ind.Ct.App.1995), trans. denied, and an order of restitution is as much a part of a criminal sentence as a fine or other penalty. Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind.Ct.App.1995), reh'g denied, trans. denied. Just as in Pitts, where it would have been "absurd to conclude that the county court would have jurisdiction over all class D felonies except those with an habitual offender affidavit attached," 410 N.E.2d at 1391, here it would be equally absurd to conclude that the county court had jurisdiction over all class D felonies except those for which restitution exceeding $10,000 was an appropriate part of the sentence. The fact that a restitution order creates a judgment lien which is similar in some ways to a civil judgment lien does not limit the county court's jurisdiction to impose an appropriate sentence for a class D felony.
Wininger was not relieved of his obligation to make restitution when his probation ended. The judgment lien created by a restitution order may be enforced "to satisfy any payment that is delinquent under the restitution order...." I.C. 35-50-5-3(b)(3) (emphasis added). Wininger argues that because the restitution order was a condition of his four years of probation, no payments can be due after the successful completion of that probation; thus, none can be "delinquent." Generally, once a term of probation has expired, the court loses all jurisdiction over the defendant and is powerless to enforce any conditions of the probation, even though it is aware the defendant has failed to meet a condition. White v. State, 560 N.E.2d 45, 46 (Ind.1990). However, the expiration of a probation period does not terminate an obligation to make restitution to a crime victim.
Unlike other conditions of probation, fines and restitution, because they can stand alone as a sentencing alternative, are considered "independent dispositions" which survive the expiration of the period of probation. People v. Bertalot, 518 N.E.2d 467, 470 (Ill.App.Ct.1987). Therefore, action can be taken either during or after the probationary period to recover restitution which was made a condition of the probation. Id. Our supreme court has implicitly recognized that the obligation to pay restitution survives the expiration of the probationary period. In Savage v. State, 655 N.E.2d 1223 (Ind.1995), the defendant received a six year sentence, with two years suspended subject to specified conditions of probation. One of the conditions was that Savage make restitution in the amount of almost $165,000.00. The court upheld the restitution order even though it would likely require Savage to pay 100% of his discretionary income for a period longer than he could be expected to live, id. at 1224, and identified the trial court's error as failure to incorporate in its restitution order a periodic payment amount that Savage could afford. Id. at 1225. Any such payment schedule would necessarily require that the payments continue well beyond Savage's period of probation.
Further, our legislature has created an explicit exception to the general rule when restitution is a condition of probation. A court may order restitution either as a condition of probation or without placing the offender on probation. I.C. 35-50-5-3(a). But regardless of whether restitution is required as a condition of probation or as an independent sentence, the restitution order is not discharged by the completion of any probationary...
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...itself. The order does not disappear if the defendant violates probation and is sent to prison. See generally, Wininger v. Purdue University, 666 N.E.2d 455 (Ind. App. 1996) (A restitution order is not discharged by completion of probationary period.)." 27 Kan. App.2d at Judge Knudson disse......
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...amount of restitution to order. However, civil settlements have no bearing on decisions of criminal punishment. Wininger v. Purdue Univ., 666 N.E.2d 455, 457 (Ind.Ct.App. 1996) ("Imposition of a restitution order is a form of punishment, and an order of restitution is as much a part of a cr......
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Kelley v. State
...order has been entered may commence proceedings supplemental to collect on an existing restitution order, Wininger v. Purdue Univ., 666 N.E.2d 455 (Ind.Ct.App.1996) (citing I.C. § 35–50–5–3(b) (providing that a restitution order is a judgment lien that may be enforced in the same manner as ......
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State v. Hymer
...itself. The order does not disappear if the defendant violates probation and is sent to prison. See generally, Wininger v. Purdue University, 666 N.E.2d 455 (Ind. App. 1996) (A restitution order is not discharged by completion of probationary period.). Affirmed in part, reversed in part, an......