Opinion
Record No. 2185-91-1
July 27, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH FREDERICK B. LOWE, JUDGE.
S. Clark Daugherty (Office of the Public Defender, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The sentence imposed by the trial court is vacated and this case is remanded for resentencing.
Simmons was convicted of embezzling property belonging to Billy Weems between October 5, 1990 and October 22, 1990. Simmons admitted that during this time he took property worth $1,038.50. Weems testified to other losses, totaling $7,721.21. Weems was unable to tie those losses to Simmons or to the time frame of the prosecution. The trial court fixed restitution at $2,500, imposed as a condition of the suspension of sentence.
Code § 19.2-303 provides that a trial court "may . . . require at least partial restitution to the aggrieved party." Code § 19.2-305 requires at least partial restitution as a condition of suspending a sentence imposed for a crime involving property damage or loss. Code § 19.2-305.1 provides that the trial court "in its discretion, shall determine the amount [of restitution]."
A requirement of restitution, as a condition of the suspension of sentence, "must be reasonable in relation to the nature of the offense." Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 899 (1992). The purpose of restitution is not merely punitive, but is to restore the victim's loss. Therefore, restitution may be ordered only for damage or loss caused by the crime.
The only evidence of loss was Simmons' acknowledgment that he had taken property worth $1,038.50. All other testimony on the subject permitted mere guesswork. The trial judge acknowledged as much from the bench. Therefore, the restitution ordered exceeded, and thus did not relate to, the loss suffered by virtue of the crime.
The sentence imposed upon Simmons on November 25, 1991 will be vacated, and this case will be remanded to the trial court for resentencing with a restitution requirement not to exceed $1,038.50.
Reversed and remanded.