No. 2--05--0425
______________________________________________________________________
________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________
________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, ) No. 02--CF--1580
)
v. )
)
SUSAN DANENBERGER, ) Honorable
) George J. Bakalis,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________________
______
JUSTICE BYRNE delivered the opinion of the court:
Defendant, Susan Danenberger, was charged with committing disorderly conduct by
filing a false police report (720 ILCS 5/26--1(a)(4) (West 2002)) that she had been sexually
assaulted. She pleaded guilty. After an evidentiary hearing, the trial court sentenced
defendant to two years' probation and ordered her to pay $2,500 to the Naperville police
department (department) as restitution for the work that the department had performed in
investigating her spurious report. Defendant appeals, arguing that the restitution order is
not authorized by the restitution statute (730 ILCS 5/5B5--6 (West 2002)) or as a condition
of probation. We agree and vacate the order of restitution.
The indictment alleged that, on or about February 26, 2002, defendant told Nick
Liberio, a Naperville police detective, that "criminal sexual assault and/or battery had been
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committed" although she knew that there was no reasonable ground to believe that this
was true. On December 19, 2002, the trial court accepted defendant's guilty plea and
conducted a sentencing hearing. Detective Liberio, the sole witness, testified as follows.
On February 26, 2002, defendant made her initial report to Liberio. That evening,
she was taken to the hospital, examined, and treated. Between February 26, 2002, and
May 24, 2002, when defendant confessed that the report was false, 11 detectives and 6
patrol officers investigated her case. They canvassed a large apartment complex;
completed a composite drawing of the suspect; issued a press release about the alleged
offense; notified commuter railroad and train police and asked them to check for potential
suspects; questioned several citizens; retrieved and viewed surveillance tapes from local
businesses; collected evidence and sent it to police crime labs; and obtained a DNA
sample from defendant's husband and tested it against DNA samples from defendant's
clothing. They also obtained a DNA sample from defendant's paramour, who disclosed that
she had told him that she was sexually assaulted in 1986. Liberio and another officer
investigated the alleged 1986 assault and found nothing to corroborate the story. On May
24, 2002, defendant confessed to filing a false report.
The presentence investigation report states that Liberio "reported that the
department suffered a monetary loss of $6,920 as a result of this offense. This total
includes staff time and resources used to investigate the defendant's sexual assault claim[,]
which she subsequently admitted was false." At the sentencing hearing, Liberio was asked
how he calculated the loss. Liberio explained that he, another officer, and a secretary "sat
down and went and reviewed all of our time sheets for that particular period." Asked
whether he had any documentation "regarding the number of hours or the hourly rates
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based on the subject of the $6,920 opinion [sic]," Liberio responded, "No, I don't have it
here. I am sure we can produce it."
On December 19, 2002, the trial court pronounced sentence. The court stressed
that defendant's crime had harmed not only the people who had been detained and
questioned but also the department, which ended up wasting "time and expense" to
investigate a nonexistent offense. The court stated that, in addition to sentencing
defendant to 24 months' probation, it would "order restitution not to exceed $6,920," with
the department "to supply some documentation in support of that amount of restitution."
That day, the court entered a written order that, in part, required defendant to pay $6,920 in
restitution to the department "upon verification/documentation."
On January 3, 2003, defendant moved in writing to vacate the guilty plea or to
reduce the sentence. The record is silent about what happened in the case between
January 3, 2003, and November 15, 2004, when the State filed a petition to revoke
defendant's probation. The petition alleged, with no explanation, that defendant had failed
to pay $6,335 in restitution that was due on December 16, 2004. On the same day, a few
hours later, defendant filed an "amended motion to modify sentence." Defendant's motion
contended that the restitution order of December 19, 2002, was void because the
department was not a "victim" under the restitution statute. 730 ILCS 5/5--5--6(b) (West
2002). She relied on cases denying restitution to police departments for the expenses that
they incurred in the normal course of investigating crimes. See People v. Velez, 336 Ill.
App. 3d 261 (2003); People v. Derengoski, 247 Ill. App. 3d 751 (1993). On December 9,
2004, defendant filed a response to the petition to revoke her probation, again arguing that
the restitution order was void.
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On December 30, 2004, the trial court heard arguments on defendant's motion to
modify the sentence. The State contended that the restitution order was proper because
here, unlike the police departments in Velez and Derengoski, the department was seeking
to recover what it lost as a direct result of defendant's crime, not what it spent to investigate
a crime. The trial court agreed. In a written opinion filed December 30, 2004, the court
held that the restitution order was valid on two bases. First, the statute, which allowed the
court to order defendant to pay restitution "for out-of-pocket expenses, damages, losses, or
injuries found to have been proximately caused by the conduct of the defendant" (730 ILCS
5/5--5--6(a) (West 2002)), applied to the department under the circumstances of the case.
The court distinguished spending money "to investigate crime," which was not
compensable under the statute, from spending money "to investigate a non-crime that the
defendant falsely reported." Second, irrespective of the restitution statute, the restitution
was valid as a condition of her probation. See 730 ILCS 5/5--6--3(b) (West 2002). This
was because defendant's crime forced the department to spend money for purposes other
than its real mission of "solving crime and maintaining order" and that defendant, not the
taxpayers, should be held accountable for those expenses.
The court also informed the parties that it would set the case for a hearing "to
determine what is a reasonable amount for the defendant to reimburse public agencies for
amounts expended to investigate her false report of a crime." However, on March 28,
2005, the court entered an order reciting that the parties had stipulated to restitution of
$2,500. The order required defendant to pay this amount to the department, without
prejudice to her "right to appeal the legal basis for the restitution that was established" in
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the court's opinion of December 30, 2004. On April 26, 2005, defendant filed a notice of
appeal.
The State argues that we lack jurisdiction over this appeal because the notice of
appeal was untimely. The State reasons as follows. The final judgment in this case was
the sentence that was imposed on December 19, 2002. Defendant had to file a notice of
appeal within 30 days after the judgment or within 30 days after the trial court disposed of
the last timely filed motion directed against the judgment. See 188 Ill. 2d R. 606(b).
Although defendant filed a motion to reconsider within 30 days, she did nothing to bring the
motion to the trial court's attention or seek a ruling on it. As a result, the motion was not
effectively made. See People v. Stewart, 412 Ill. 106, 108 (1952); People v. Gambill, 91 Ill.
App. 3d 302, 303 (1980). The motion that defendant did bring to the attention of the trial
court was not filed within 30 days of the judgment and thus did not extend the time to file
the notice of appeal. Therefore, because the notice of appeal was filed more than 30 days
after the entry of the judgment (indeed, more than two years afterward), it was untimely and
we lack jurisdiction over this appeal. We disagree.
The State's argument assumes that the order of December 19, 2002, was the final
judgment in the case. It was not. The final judgment in a criminal case is the sentence.
People v. Caballero, 102 Ill. 2d 23, 51 (1984). When restitution is part of the sentence, the
judgment is not final until the trial court determines the amount of restitution that is due.
People v. Richardson, 252 Ill. App. 3d 593, 595 (1993); People v. Biederman, 100 Ill. App.
3d 558, 560 (1981). Here, the order of December 19, 2002, required defendant to pay
restitution of no more than $6,920, with the exact amount due to be determined after the
department documented its losses. Even as of December 30, 2004, the trial court had not
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determined how much restitution defendant would pay. It is clear from the record that this
amount was not decided until March 28, 2005, when the court ordered defendant to pay
$2,500, the stipulated amount. Thus, the judgment was not final until March 28, 2005. As
defendant filed her notice of appeal within 30 days after this order, we have jurisdiction to
consider her appeal.
Because defendant's notice of appeal was timely, we need not consider her
argument that, because she contends that the order of restitution was void, it can be
challenged at any time.
We turn to the merits of defendant's appeal. She contends first that, under cases
such as Velez and Derengoski, the department cannot be a "victim" as that term is used in
the restitution statute. She reasons that the purpose of the statute is to reimburse victims
of crime for the actual out-of-pocket expenses they incur as a result of the offenses and
that whatever the department spent to investigate defendant's spurious complaint came out
of its normal operating expenses. She concludes that, because the department suffered no
pecuniary loss, it cannot receive monetary compensation. 1 Under the circumstances of this
case, we agree with defendant that the department is not entitled to restitution.
1
The State does not respond to defendant's argument, but instead contends that,
because the record on appeal is incomplete, we must presume that the trial court's
judgment was correct. See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). Specifically,
the State notes that we lack a transcript of the hearing on defendant's guilty plea and that it
is possible that, as part of a plea agreement, defendant consented to paying restitution to
the department.
The State's argument is unpersuasive. Absolutely nothing in the record suggests
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that the parties made any such agreement. Had they done so, we would expect to find the
State mentioning the agreement in opposing defendant's motion to reduce her sentence,
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and we would also expect to find the trial court mentioning the agreement when imposing
the sentence and when considering defendant's motion to reduce her sentence. In no
proceedings following defendant's plea of guilty did either the State or the trial court even
remotely imply that defendant's plea agreement (if indeed there was a plea agreement at
all) included a promise to pay restitution to the department. Although the parties eventually
stipulated that defendant would pay restitution of $2,500, they did so with the express
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The pertinent portions of the restitution statute provide:
"In all convictions for offenses *** in which the person received any injury to
their person or damage to their real or personal property as a result of the criminal
act of the defendant, the court shall order restitution as provided in this Section. In
all other cases, except cases in which restitution is required under this Section, the
court must at the sentence hearing determine whether restitution is an appropriate
sentence to be imposed on each defendant convicted of an offense. If the court
determines that an order directing the offender to make restitution is appropriate, the
offender may be sentenced to make restitution. If the offender is sentenced to make
restitution the Court shall determine the restitution as hereinafter set forth:
(a) At the sentence hearing, the court shall determine whether the
property may be restored in kind to the possession of the owner or the
person entitled to possession thereof; or whether the defendant is possessed
of sufficient skill to repair and restore property damaged; or whether the
defendant should be required to make restitution in cash, for out-of-pocket
expenses, damages, losses, or injuries found to have been proximately
understanding that the stipulation in no way waived or prejudiced defendant's right to argue
that any order of restitution was impermissible.
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caused by the conduct of the defendant or another for whom the defendant is
legally accountable ***.
(b) In fixing the amount of restitution to be paid in cash, the court shall
allow credit for property returned in kind, for property damages ordered to be
repaired by the defendant, and for property ordered to be restored by the
defendant; and after granting the credit, the court shall assess the actual out-
of-pocket expenses, losses, damages, and injuries suffered by the victim
named in the charge and any other victims who may also have suffered out-
of-pocket expenses, losses, damages, and injuries proximately caused by the
same criminal conduct of the defendant." (Emphasis added.) 730 ILCS 5/5--
5--6 (West 2002).
The trial court held that this language allowed the department to recover from
defendant under the facts of this case. The issue on review is whether the trial court
correctly interpreted the statute. Statutory construction, which raises issues of law that we
review de novo (In re Estate of Dierkes, 191 Ill. 2d 326, 330 (2000)), requires us to
ascertain the intention of the legislature. Garcia v. Nelson, 326 Ill. App. 3d 33, 38 (2001).
Ordinarily, the statutory language itself is the best guide to legislative intent, and, if the
language is unambiguous, we must follow it. Garcia, 326 Ill. App. 3d at 38.
Applying these principles here, we conclude that the restitution statute does not
apply to the facts of this case. The department may not receive restitution, for the simple
reason that defendant's offense did not proximately cause the department any out-of-
pocket expenses, losses, damages, or injuries. See 730 ILCS 5/5--5--6(a), (b) (West
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2002). 2 At the sentencing hearing, Liberio testified that he arrived at the figure of $6,920,
the amount of restitution that the State originally requested, by ascertaining how many
hours each department employee spent investigating defendant's spurious allegation that
she had been sexually assaulted, multiplying this figure by the employee's hourly pay rate,
and combining the individual employees' totals to arrive at the overall amount that the
department "spent" as a result of defendant's crime. Thus, the department sought
restitution only for the hours that officers and other employees spent on the job
investigating the nonexistent crime. Liberio never contended that defendant's crime caused
the department any other type of losses, e.g., damage to property, direct monetary loss, or
anything else beyond the officers' regular salaries.
Under these circumstances, the department's "losses" are not compensable under
the restitution statute. The statute clearly requires that, to receive restitution, a victim must
have suffered "out-of-pocket expenses, damages, losses, or injuries" (730 ILCS 5/5--5--6(a)
(West 2002)) and that the amount of restitution must be limited to the victim's "actual out-of-
pocket expenses, losses, damages, and injuries" (730 ILCS 5/5--5--6(b) (West 2002)).
Here, the State failed to prove that the department suffered any out-of-pocket losses as a
result of defendant's offense. The money that the officers were paid for the hours that they
spent investigating defendant's claim was money that they would have been paid anyway.
There is no evidence that anyone who investigated defendant's report was paid anything
beyond his or her normal compensation for working on defendant's case. In the absence of
2
Of course, there is no suggestion that the department (or any employee of the department)
suffered "injury to their person." 730 ILCS 5/5--5--6 (West 2002).
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evidence otherwise, we presume that police officers are not paid for piecework. Although
defendant's offense caused officers to spend time that they could have used more
productively, it did not cause the department to spend money that it would have retained
otherwise. The restitution statute provides compensation for financial losses, not for
nonpecuniary opportunity costs.
Our conclusion that the department is not entitled to compensation is supported by
this court's opinion in People v. Gaytan, 186 Ill. App. 3d 919 (1989). There, in denying
restitution to a law enforcement agency that spent money on a controlled drug purchase,
we explained that, under the circumstances of the case, the agency was not a "victim" of
the defendant's violation of the drug laws. We acknowledged that the restitution statute
clearly contemplates a definition of "victim" that is broader than that used in section 5--1--22
of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005--1--22 (now 730
ILCS 5/5--1--22 (West 2002))), which adopted the definition of "victim" in the Bill of Rights
for Victims and Witnesses of Violent Crime Act (Ill. Rev. Stat. 1987, ch. 38, par. 1403(a)
(now codified, as amended, as Rights of Crime Victims and Witnesses Act (725 ILCS
120/3(a) (West 2002)))). Nonetheless, we concluded that, in order to be a "victim" who is
eligible for restitution under the statute, a person or agency must show that "property was
taken, property damage was incurred, or personal injury [was] sustained." Gaytan, 186 Ill.
App. 3d at 929. We held that, under those circumstances, the agency in Gaytan was not a
victim, as it had merely expended public monies in the pursuit of solving crimes. Gaytan,
186 Ill. App. 3d at 929. Thus, we denied the agency any restitution.
Arguably, Gaytan is distinguishable, as here the department was, in a sense, the
"victim" of defendant's offense and not merely trying to detect and prosecute the offense.
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As the trial court reasoned, the department was "victimized" by being forced to waste time
and effort that could have been better spent. In Gaytan, the law enforcement agency
deliberately spent money in order to afford the defendant an opportunity to commit an
offense. Under those circumstances, it would do violence to common usage to call the
agency a "victim." Obviously, that is not the case here; the department did not seek to
induce defendant to commit a crime.
Nonetheless, Gaytan's broad holding, that a "victim" must be someone who has
suffered property damage, personal injury, or financial loss, applies here. Such a loss is
not, by itself, a sufficient condition for recovery (as we held in Velez and Derengoski).
However, it is plainly a necessary condition. See State v. Wilson, 193 Or. App. 506, 92
P.3d 729 (2004) (state department of corrections could not receive restitution for time spent
apprehending prisoner who had committed offense of escape, as regular salaries and
overhead expenses would have been incurred anyway). We need not decide whether, in
some sense, the department was a "victim" of defendant's offense and not merely
performing its normal functions when it investigated her spurious report. Even were we to
distinguish this case from those such as Velez and Derengoski, the department would still
not be eligible for restitution. Like the corrections department in Wilson, the department did
not incur a compensable loss; it merely spent time and effort that could have been devoted
to other uses.
Although we hold that the department in this case is not a "victim" as that term is
used in the restitution statute, we do not hold that a law enforcement agency can never be
a victim entitled to restitution. We are aware that several of our opinions contain language
that could be read out of context to support such a per se rule. See Velez, 336 Ill. App. 3d
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at 267 ("a police department or government agency is not considered a 'victim' within the
meaning of the restitution statute"); Derengoski, 247 Ill. App. 3d at 754 ("the vast weight of
authority has held that a police department or government agency is not considered a
'victim' within the meaning of the restitution statute"). However, the real rationale of these
opinions is that a law enforcement agency ought not be compensated for the public money
that it spends in performing its basic function of investigating and solving crimes. See
Velez, 336 Ill. App. 3d at 267; Derengoski, 247 Ill. App. 3d at 754-55. The reasons for this
rule are easy to find. First, in common parlance, merely investigating an offense does not
make a police department a "victim" of the offense. Second, were the rule otherwise, police
departments would receive restitution in almost every criminal case, thus being paid twice--
once by the taxpayers and once by the offender--for performing their basic function.
We add an important caveat. We are not prepared to say that a law enforcement
agency can never be compensated via the restitution statute for the losses that it suffers as
a proximate result of a crime. For example, it is at least plausible that, if a person commits
criminal damage to property by destroying a police department squad car, then the
department may be compensated for the loss. See United States v. Donaby, 349 F.3d
1046, 1053-54 (7th Cir. 2003) (village entitled to compensation for damage to police car, as
damage was proximately caused by defendants' bank robbery). That is a question for
another day. Also not requiring our resolution at this time is whether the department may
recover against defendant by some type of separate civil suit. We hold only that, under the
facts of this case, the department may not receive compensation from defendant under the
restitution statute.
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Having concluded that the trial court erred in relying on the restitution statute, we
now consider whether the restitution order is valid as an exercise of the court's broad power
under section 5--6--3 of the Unified Code of Corrections (730 ILCS 5/5--6--3 (West 2002))
to impose reasonable conditions of probation on defendant. Although the court has
discretion in imposing conditions other than those specifically listed in subsection (b) of
section 5--6--3, these conditions must nonetheless relate to the nature of the offense or the
rehabilitation of the defendant. 730 ILCS 5/5--6--3(b) (West 2002). We conclude that,
under the circumstances here, requiring defendant to pay restitution to the department
violates this requirement.
Here, the trial court never asserted or implied that requiring defendant to pay
restitution to the department was related to her rehabilitation. The trial court's stated
purpose was purely compensatory. However, we cannot say that requiring defendant to
pay financial compensation to an agency that has suffered no financial loss is reasonably
related to the nature of the offense. Our conclusion is based primarily on our construction
of the statute, a matter that we consider de novo. See Dierkes, 191 Ill. 2d at 330.
A free-floating power of "restitution" would circumvent the restrictions that the
legislature has crafted in the restitution statute. Section 5--6--3(b)(8) (730 ILCS 5/5--6--
3(b)(8) (West 2002)) allows a trial court to require a defendant to "make restitution as
provided in Section 5--5--6 of this Code." (Emphasis added.) Using the principle of
construction expressio unius est exclusio alterius, we conclude that this language
expresses the legislative intent that any restitution to an alleged victim must conform to the
restitution statute and that, although the trial court has discretion in imposing conditions of
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probation, it may not stretch the concept of restitution beyond that embodied in the statute
that specifically addresses criminal defendants' potential liability for restitution.
Because the trial court lacked the authority to enter the restitution order in this case,
we vacate that part of the judgment. In all other respects, the judgment of the circuit court
of Du Page County is affirmed.
Affirmed in part and vacated in part.
HUTCHINSON and CALLUM, JJ., concur.
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