Summary
holding that a trial court supervising restitution payments has the option to hold a defendant in contempt or impose a suspended jail term if the defendant fails to remit his restitution payments
Summary of this case from State v. CandedoOpinion
No. 990405-CA.
July 7, 2000. (For Official Publication)
Appeal from the Third District, Salt Lake Department The Honorable Tyrone Medley
Catherine E. Lilly and Ronald S. Fujino, Salt Lake City, for Appellant.
Jan Graham and Jeffrey S. Buckner, Salt Lake City, for Appellee.
Before Judges GREENWOOD, JACKSON, and ORME.
OPINION
¶ 1 Defendant Marla Nones appeals a post-conviction order denying her motion for review of restitution. She challenges the trial court's continuing jurisdiction over the case after court-ordered probation ended. We affirm.
BACKGROUND
¶ 2 In 1992, the trial court sentenced Nones to one year of probation after her conviction for Criminal Mischief. The trial court ordered restitution as a condition of that probation. In March 1994, the trial court properly revoked and reinstated Nones's probation for one year.
¶ 3 In October 1994, after Nones fulfilled all the conditions of her probation except paying restitution, Adult Probation and Parole (APP) recommended to the trial court that it supervise the balance of Nones's probation. The trial court accepted this recommendation and ordered APP to monitor collection of the remaining restitution.
¶ 4 In July 1998, APP notified the trial court that Nones had not paid restitution since August 1997. Nones then filed a pro se motion for review of the 1992 restitution order. Nones later filed a supplemental memorandum arguing that probation expired as a matter of law in March 1995 and that the trial court did not have jurisdiction to enforce its restitution order. In April 1999, the trial court denied Nones's motion. Nones appeals.
STANDARD OF REVIEW
¶ 5 Whether personal jurisdiction exists is a question of law and we review the trial court's determination on jurisdictional issues for correctness, giving no deference to the trial court's decision. See State Dep't of Soc. Servs. v. Vijil, 784 P.2d 1130, 1132 (Utah 1989). "[T]he jurisdictional issue relates to the court's authority over a criminal defendant to enforce an order of restitution. Because '[j]urisdiction to order restitution in a criminal case is statutory,' we must interpret relevant Utah statutes to resolve this issue." State v. Dickey, 841 P.2d 1203, 1204-05 (Utah Ct.App. 1992) (citation omitted; alteration in original). We review issues of statutory construction for correctness. See id. at 1205.
ANALYSIS
¶ 6 Because Nones's probation was not extended according to the terms for extending probation found in Utah Code Ann. § 77-18-1(8), (10) (Supp. 1992), independent jurisdiction over enforcement of restitution orders must exist to enable us to affirm the trial court's decision. Applying the reasoning found in State v. Dickey, 841 P.2d 1203 (Utah Ct.App. 1992), to the statutes in force when Nones was convicted, we hold that the trial court retained jurisdiction under Utah Code Ann. §§ 76-3-201 (Supp. 1992) and 76-3-201.1 (1990) to enforce its 1992 restitution order.
¶ 7 In Dickey we stated: "In addition to authorizing the court to make payment of restitution a condition of probation, Utah statutes also accorded restitution separate legal effect that paralleled probation in sentencing and judgments." Dickey, 841 P.2d at 1205 (citation and footnote omitted). Because there was no material change in the statute conferring this separate basis for enforcing restitution orders, the Dickey holding still applies to the relevant statutes effective when Nones was sentenced in 1992.
¶ 8 The versions of sections 76-3-201(3) and 76-3-201.1 in force in 1985 — when Dickey was decided — remained essentially unchanged in 1992. See Utah Code Ann. §§ 76-3-201(3) (Supp. 1992) -201.1 (1990). Thus, the portions of Dickey dealing with those provisions still applied when Nones was convicted, including our holding that "the restitution remedy itself provided the trial court an alternate jurisdictional basis under which to compel defendant's payment of restitution." Dickey, 841 P.2d at 1205.
¶ 9 In Dickey we bolstered that holding by analyzing portions of Utah Code Ann. § 77-18-1 (Supp. 1985) together with sections 76-3-201 and -201.1. See Dickey, 841 P.2d at 1206-07. An "[i]ntegrated analysis" of these provisions revealed that a restitution order can be enforced as a probation condition, in accord with section 77-18-1, "and as a separate and independent component of the court's judgment and the defendant's original sentence under Utah Code Annotated sections 76-3-201(3) -201.1 (1) to -201[.1](5)." Id. at 1207.
¶ 10 We found support for this holding in the discretionary nature of the trial court's sentencing power, the differing criteria for determining the amount of restitution and the manner of payment, and the differing methods for penalizing defendants for noncompliance with restitution orders. See id. at 1207-08. The changes in language cited by Nones do not alter the underlying considerations that supported the holding in Dickey. Indeed, the changes further clarify the difference between the two independent methods of enforcing payment of restitution.
¶ 11 The 1985 version of section 77-18-1 allowed the trial court to "retain jurisdiction for the purposes of collecting the fines or restitution" after the statutorily prescribed probation time was set to expire. Utah Code Ann. § 77-18-1(13) (Supp. 1985). The 1992 version provided that "the court may retain jurisdiction of the case and continue the defendant on bench probation or place the defendant on bench probation for the limited purpose of enforcing the payment of fines and restitution." Id. § 77-18-1(8)(a)(ii) (Supp. 1992).
¶ 12 The addition of the "bench probation" language did not change the discretionary nature of the trial court's power to "select one or a combination of options including probation."Dickey, 841 P.2d at 1207. One possible sentence a trial court could choose was to order restitution but no probation. If, as Nones contends, section 76-3-201.1 applied only after a probation violation was established, a trial court could never enforce a restitution order without also ordering that the restitution be a condition of probation. This result is not in keeping with the intent of sections 76-3-201 and 76-3-201.1 which compel the trial court to order restitution when appropriate. See Utah Code Ann. § 76-3-201(3)(a)(i) (Supp. 1992) (stating "court shall order that the defendant make restitution" when found guilty of causing pecuniary damage). The 1992 version of section 77-18-1 does not take away from the provisions in sections 76-3-201 and 76-3-201.1, but merely clarifies the jurisdiction retained under section 77-18-1.
¶ 13 The discretionary nature of the power conferred by section 77-18-1(8)(a)(ii), characterized by the word "may," further suggests that continuing probation is only one of the ways a trial court may enforce restitution. Further support for this interpretation is found in section 77-18-1(8)(a)(iii) which allows a victim or prosecutor to make a motion for the defendant to show cause why nonpayment "should not be treated as contempt of court or why the suspended jail or prison term should not be imposed."Id. § 77-18-1(8)(a)(iii). The mention of both possible remedies indicates both options are available for enforcing restitution payments. This enforcement could occur only after observing proper procedural mandates for extending probation or, in the case of contempt, after allowing probation to expire and having a hearing on an order to show cause. This provision also highlights the different penalties for failing to comply under the independent enforcement provisions. Different penalties suggest the independence of the enforcement provisions.
¶ 14 Finally, as in Dickey, public policy supports our interpretation of these statutes. In Dickey, we outlined the policy considerations served by the holding that the two restitution provisions confer independent enforcement power on the trial court. See 841 P.2d at 1209. Among these are the dual purposes served by allowing independent enforcement — compensating the victim and repaying society — and the increased likelihood that victims will receive compensation given the sometimes low cost-to-recovery ratio in civil actions. See id. The 1992 statutory changes continued to serve these policies.
¶ 15 Without independent enforcement power, victims might not receive compensation for damages caused by defendants' crimes. See id. Indeed, in cases when the price is high, a defendant might prefer jail for the original offense over paying restitution. If the relationship of the restitution provisions is as Nones contends, such an injustice might occur. In such a case, the public receives its due — punishment of the guilty — but the victim does not. The restitution provisions in the 1990 and 1992 versions of Chapter 76 allowed a trial court to confine the defendant until restitution is paid. This power is necessary to fulfill the dual purposes of restitution cited in Dickey. See id.
CONCLUSION
¶ 16 We are not persuaded that the clarification in the restitution provision of Chapter 77 negates our holding in Dickey. Indeed, all the considerations cited in Dickey as supportive of the view that there are two independent enforcement tools conferred on the court remained present even under the statutory language in force in 1992. Because the changes in language noted by Nones do not change the independent enforcement power cited inDickey, we must hold that the trial court, though it did not extend Nones's probation, retained jurisdiction over her for the collection of restitution. Accordingly, we affirm.
¶ 17 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge, and GREGORY K. ORME, Judge.