Smitley v. State

WILNER, Judge. This appeal indicates the existence of some confusion regarding the manner in which a court may enter, preserve, and enforce an order of restitution following a criminal conviction. We shall try, in this Opinion, to clarify the court’s options. Roy Smitley is an unfortunate soul; he is an alcoholic and suffers from epilepsy.

Perhaps, in part, by reason of the former of those afflictions, he is no stranger to the criminal justice system. In January, 1982, Smitley was charged with disorderly conduct (No. 48210310) and battery (No. 48210311). The case somehow reached the Circuit Court for Baltimore City, where Smitley pled guilty, was found guilty, and, on September 23, 1982, was sentenced. We do not have before us a transcript of the disposition hearing conducted by Judge Perrott.

The docket entry for that day shows the following: “Judgment: as to 48210310 — Sixty (60) da[y]s to Department of Correction concurrent to 48210310 [sic ] — Pay costs thru Probation. Judgment: as to 48210311 — Two (2) years to Department of Correction from 9-22-82 to suspended — Three (3) years supervised probation. Make restitution and pay Costs thru Probation, Perrott, J.” The Order for Probation signed by Judge Perrott that day recites that for “Docket No. 48210310-11,” “execution of the sentence of 2 years has been suspended” and that ⁴⁷⁹ Smitley is released on probation for a period of three years “subject to the following conditions.” Among the nine enumerated conditions that followed were No. 4 — “Obey all laws” — and No. 9: “Shall pay, through the Division of Parole and Probation the sum of $1420.00 as follows: Court costs of $220.00; [and] Restitution of $1200.00 to Ron Bauer” No appeal was taken from this judgment. In November, 1983, Smitley was charged with having violated both of those conditions.

At a hearing held on the matter on December 22, 1983, before Judge Kenneth L. Johnson, the State established that, in October, 1983, Smitley had been convicted in District Court of one count of disorderly conduct, two counts of malicious destruction of property, and one count of assault. For the disorderly conduct, he was sentenced to sixty days in jail, suspended in favor of eighteen months probation. On the other three convictions, he was sentenced to eighty-nine days in jail, of which, in each case, sixty days were suspended. With respect to the restitution, although the probation order clearly directed payment of only $1,420 total (including $220 court costs), the State contended that he was ordered to pay $1,444, of which only $169.50 had been paid, leaving an unpaid balance of $1,274.50.

No one questioned, or explained, the $24 discrepancy. Upon this evidence, Judge Johnson concluded that “probation is a waste of time for you.” He revoked the probation and entered the following judgment: “The sentence of the Court is that you be confined to the Department of Correction for a period of two (2) years and you will get credit for time served, the time that you have served since you got picked up on this warrant. In addition, you are to pay the balance of the costs and fines, in this case, and the total amount as I understand is $1,274.50, you are to make restitution. In ⁴⁸⁰ other words, the order given to you by Judge Perrott is reinstated, the only difference being is that he had given you three years probation and I am saying that you are going to serve now the two years____” (Emphasis added.) 1 Counsel immediately objected “to the imposition of restitution and the fine,” and, when asked why, responded, “Because the original court order if the Court would look at the payment of the fines and restitution, now the Court seeks that and place that problem on Mr. Smitley.” Although the court indicated no difficulty deciphering that explanation, it clearly was not impressed.

It noted and overruled the objection. Not to be outdone, the prosecutor decided to muddy things up a bit more by asking that “the $1,444 ... be attached to the parole.” 2 The probation officer advised the court that “the account will be held in abeyance and upon his release he will commence his payments,” presumably meaning that no restitution payments would be expected during the period of appellant’s incarceration. The court then announced: “It’s going to be six months after he is released that he is going to be required to pay the restitution and the fine within that six months.” The effect of that, everyone agreed, was; “you are extending the probation for six months and when he gets released he will pay the balance of the $1,444____” No further objection was noted. The docket entry is as follows: “Violation of Probation Hearing, Plea of Not Guilty-Verdict-Guilty: Judgment: as to case 482130311-Two (2) years to Department of Correction from 11-22-83 as to 48213010 Sixty (60) da[y]s to Department of Correction ⁴⁸¹ concurrent to 48210311.

Probation to continue Six (6) months probation imposed to continue after release from serving the above judgment at which time the Defendant is to pay t[he] balance [sic ] of costs, fine and restitution of $1,274.50, Johnson, J.” Appellant complains in this appeal: “I. The trial court erred when, after reimposing Appellant’s entire sentence, it ordered that he be placed on probation for six months after his release with a special condition that he pay the outstanding balance of restitution and costs.

II

The trial court erred when it ordered Appellant to pay restitution in a lump sum upon his release.

III

Appellant is entitled to an additional day’s credit.” The State’s response is that none of these complaints has been preserved for appellate review, and that, as to the first, there was no error in that the restitution was part of the original sentence. We agree with the State as to issues II and III. No objection was made below to the manner of payment of the restitution or to the alleged denial of an additional day’s credit. For reasons shortly to be expressed, appellant’s second complaint is moot; as to the third complaint, if there was error in not allowing a day’s credit against the sentence, appellant may pursue the matter under Md.Rule 4-345.

Appellant did, we think, object to the ordering of restitution. Although counsel’s articulation of the objection would likely have caused his English grammar teacher justifiably to seek early retirement, it does, nonetheless, suffice to preserve the issue for our review. Until 1977, the authority of a court exercising criminal jurisdiction to order restitution seems to have been somewhat limited. At least under § 641A of art. 27, first enacted in 1970, and probably under its inherent authority even before then, where the court was otherwise empow ⁴⁸² ered to suspend execution of a sentence in favor of probation, it could direct the defendant to make restitution as a condition of the probation.

See Coles v. State, 290 Md. 296 , 429 A.2d 1029 (1981). Its ability to order restitution directly, as part of its sentence, appeared to depend upon specific statutory authority, however, and that was limited to certain burglary, fraud, and credit card offenses. See current Md.Code Ann. art. 27, §§ 29, 33, 33A, 145, and 230A, and former art. 27, § 145, repealed by 1978 Md.Laws, ch. 849. In 1977, the General Assembly, in an attempt both to broaden and to confirm the power to order restitution, enacted new § 640 to art. 27.

In subsection (b), the Legislature provided: “Upon conviction for a crime where property of another has been stolen, converted, unlawfully obtained, or its value substantially decreased as the direct result of the crime, or where the victim suffered actual medical expenses, direct out of pocket losses, or loss of earning as a direct result of the crime [, or if as a direct result of the crime, the victim incurred medical expenses that were paid by the Department of Health and Mental Hygiene or any other governmental entity],1 [3] the court may order the defendant to make restitution in addition to any other penalty provided for the commission of the crime.” Section 640(c) provides that “[w]hen an order of restitution has been entered pursuant to subsection (b), compliance with the order may be made as a sentence or condition of probation or parole.” (Emphasis added.) Subsection (e) states: “When a defendant fails to make restitution as ordered, the