In re Herbert B.

LISS, Judge. At an adjudicatory hearing conducted on March 21, 1983, the Circuit Court for Prince George’s County (Woods, J.) sitting as a juvenile court, found Herbert B., the 16 year old appellant, to have committed a delinquent act by having participated in a breaking and entering. At a disposition hearing held on April 20, 1983, the court, notwithstanding the appellant’s commission of a delinquent act, determined that the appellant was not in need of treatment or guidance, and therefore was not a delinquent child. The court did, however, direct that the appellant and his mother, Emma M., pay $228.50 restitution.

On appeal the appellant contends that the trial court erred in ordering the restitution because: ²⁷ 1. it had “dismissed the case”; and 2. it had not made an investigation of the appellant’s ability to pay restitution. The evidence at the adjudicatory hearing indicated that a laundromat had been broken into about 11:00 P.M. on Sunday, November 28, 1982. Officer Adolpho Walter apprehended the appellant in the vicinity of the laundromat with candy taken from the laundromat. Although the appellant told Walter at the time that the candy had been given to him by a third party, the appellant elected not to testify at the hearing and did not present any witnesses on his own behalf.

At the conclusion of the hearing, the court told the appellant that it found him involved in “count two, which is storehouse breaking, $5 or upward” and “involved in count seven, destruction of private property.” The court then said: “I am going to send him back home with his mother, order a complete juvenile service investigation, return him on April 20th. I will send him over to Master Sparrough for a restitution hearing.” The record contains a “Master’s report and Recommendation” which indicates that a hearing was held on April 20, 1983, and restitution assessed at $228.50. No other information concerning the master’s hearing is included in the record except that on the face of the report is a notation that the appellant wanted to appeal the restitution. At the commencement of the disposition hearing on April 20, 1983, the following colloquy occurred: “[THE COURT]: Judge Woods heard this trial.

And the young man is entitled to have Judge Woods sentence him. Of course, I am more than happy to do that. If he wishes me to do it. Judge Woods is not available today.

If he wants to have it a different day, of course, he can or he can have me do it, whichever you prefer, son. MRS. BAGARIA [Appellant’s counsel]: It is all right with him, Your Honor.” ²⁸ The court then said, after a short discussion with the parties: “Okay. Well, very frankly, after reviewing the [Juvenile Services] report, it seems to me that he really doesn’t need any particular care and treatment.

The court is going to find as a fact that he does not need care and treatment. Therefore, the matter will stand dismissed. And now there is a minor problem here in that restitution was ordered in the amount of $228.50, which I note from this face of the order he wants to appeal. If I dismiss the case I am not even sure that the court has jurisdiction to order restitution.” After more discussion with the parties, the following colloquy then occurred: “[THE COURT]: I think the court will reiterate what I said before, I will find as a fact he is not in need of care and treatment, and the matter will be dismissed.

However, at the same time, there is a restitution order here in the amount of $228.50 recommended by the Master. Was there any question about the dollar amount? MRS. BAGARIA: No, Your Honor, that was an agreement of the parties.” I. Jurisdiction to order restitution The thrust of the appellant’s contention is that by