Harris v. State

Pope, Judge.

Defendant Kenneth Dewayne Harris pled guilty and was found *842guilty of theft by taking. The stolen property, a rental car, was taken by defendant from a parking lot where it had been parked by the lessee. The sentence imposed on July 26, 1990, provided for four years to serve 60 days in prison with the remainder on probation, and as one of the conditions of probation, restitution in an amount to be determined at a subsequent hearing. On August 29, 1990, restitution was ordered to be paid the lessee victim in the amount of $600. Although the amount of restitution had been in dispute, the lessee failed to appear at the hearing, apparently due to misinformation received from a receptionist in the District Attorney’s office, and the prosecutor and defendant through counsel stipulated to a restitution amount of $600. Apparently lessee was notified subsequently that she was being sued by the lessor for damages done to the stolen automobile. After being notified of the $600 restitution amount, lessee’s attorney filed a motion to modify the restitution order to provide for additional restitution in the amount of $2,623.99, which was the balance due on the amount being demanded of lessee by lessor. A second restitution hearing was held, and defendant posed timely objections to the requested increase in the amount of restitution. At this hearing the trial court expressed concern regarding the standing of a victim to intervene in a criminal proceeding in this manner and required the State to argue the lessee’s motion for additional restitution. On November 9, 1990, an order was signed, and filed on November 15, 1990, finding that lessor, Atlanta Rent-A-Car, Inc., has suffered a loss which is a result of the criminal act of the defendant, and is “entitled to damages in the nature of costs for lost rental of a vehicle and damage to the vehicle; the amount of damages is $2,296.30.” The trial court ordered defendant “liable for restitution in the amount of $2,296.30. Said amount ... to be paid in full during the probated portion of the sentence. . . .” (Emphasis supplied.)

Defendant appeals from the trial court’s order awarding restitution in the amount of $2,296.30, contending that “the trial court’s modification of [his] sentence to increase the restitution was invalid.” Held:

1. Defendant argues the trial court’s order is invalid because, inter alia, the attempted increase in the amount of restitution was ordered both after the term of court in which sentence initially was imposed and more than 60 days from the date sentence was imposed by the judge, in violation of OCGA § 17-10-1 (a). However, Article 1, Chapter 14, Title 17 of OCGA, specifically pertains to “Restitution and Distribution of Profits to Victims of Crimes.” Contained within Article 1 is OCGA § 17-14-12, which pertinently provides: “The ordering authority shall retain jurisdiction to modify a restitution order at any time before the expiration of the relief ordered.” (Emphasis supplied.) The limiting provisions of OCGA § 17-10-1 (a) are to be given *843application “except as otherwise provided by law.” Clearly, however, the legislature intended OCGA § 17-14-12 to be excepted from the time limitation in OCGA § 17-10-1. Compare England v. Newton, 238 Ga. 534, 535 (233 SE2d 787) (1977) and Logan v. Lee, 247 Ga. 608 (278 SE2d 1) (1981).

2. Defendant also argues the order is invalid because it increases his punishment after he had commenced serving his sentence. The State does not dispute that defendant had begun serving his sentence at the time the trial court entered its order increasing the amount of restitution to be paid the victims. It also is true, as defendant argues, that “once a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment..” Inman v. State, 124 Ga. App. 190, 192 (183 SE2d 413) (1971). The question then arises as to whether an increase in the amount of restitution, awarded as a condition of probation, is an increase in punishment as argued by defendant, or is but an increase in a non-punitive aspect of the probation portion of the sentence as argued by the State.

Contrary to defendant’s argument on appeal, restitution is not punitive in nature. Rather, the first and foremost purpose of restitution is to compensate or reimburse the victim for his loss, or insofar as it is possible, to return him to the position he enjoyed before the crime was committed against him. Indeed, Webster’s Third New Intl. Dictionary (3d ed. 1981) defines restitution as “an act of restoring or a condition of being restored: and also as “restoration of something to its rightful owner: the making good of or giving an equivalent for some injury. . . .” Consequently, restitution can be ordered paid to the victim to reimburse him for the loss of some physical thing, such as a stolen automobile; it can also be used in an attempt to help the victim recover from the crime as, for example, when a court orders a child or sexual abuser to pay for the victim’s psychological treatment in order to help the victim overcome the effects of the crime. See S. Res. 94, Ga. L. 1986, p. 1203; see also Ledford v. State, 189 Ga. App. 148 (375 SE2d 280) (1988).

Moreover, while restitution is not synonymous with civil damages, there are many similarities between restitution ordered to be paid by one convicted of a crime and damages awarded against a party in a civil trial. The restitution chapter provides that “[d]amages means all damages which a victim could recover against an offender in a civil action, . . . based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium.” OCGA § 17-14-2 (2). “ ‘Victim’ means any natural person or his personal representative or any firm, partnership, association, public or private corporation, or governmental entity suffering damages caused by an of*844fender’s unlawful act.” OCGA § 17-14-2 (9). OCGA § 17-14-9 provides that “[t]he amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” However, because the offender has already been punished for his crime, restitution may not include punitive damages. OCGA § 17-14-2 (2). Moreover, restitution and civil judgment are enforceable in the same manner — by execution. OCGA § 17-14-13. Thus, as is readily discerned from the statutory provision governing restitution, such an award is not punishment any more than are civil damages awarded to make whole a party who has incurred losses because of another party’s breach of a statutory, contractual or common law duty. As stated above, restitution is an economic recovery, a transfer of value from one who has caused injury or damages to one who suffered the same as a result. Restitution aims to restore the victim or victims to the condition existing before defendant’s criminal act, via a monetary expression of restoration. “One of the two primary goals of restitution is, as nearly as possible, to make the victim whole. OCGA §§ 17-14-1, 17-14-9, 17-14-10 (4).” Garrett v. State, 175 Ga. App. 400, 403 (2) (333 SE2d 432) (1985).

Based on the foregoing, we find the trial court had authority to modify the restitution order to include the lessor’s damages. The Code sections relating to restitution contemplate a hearing and findings on the amount of restitution due the victim, if any. Cannon v. State, 246 Ga. 754 (3) (272 SE2d 709) (1980). When error in determining the amount of damages was discovered, the proper procedure for correcting the error was to reopen the issue for further evidence and a new finding on the amount of damages, including the lessor’s damages. Clearly, restitution could be ordered for both the lessor and the lessee of the automobile, as both were victims of the defendant’s acts in connection with his theft of the automobile. Since it does not appear from the evidence that the restitution ordered exceeded the damages suffered by the victims, the defendant has not shown that the trial court exceeded its authority. Instead, it implemented the stated policy of this State, which is “that restitution to their victims by those found guilty of crimes is a primary concern of the criminal justice system.” Because the increase in the amount of restitution initially ordered in this case did not constitute an impermissible increase or enhancement of defendant’s punishment, the trial court’s order must be affirmed.

Judgment affirmed.

Banke, P. J., Carley, Beasley, Cooper and Andrews, JJ., concur. Sognier, C. J., McMurray, P. J., and Birdsong, P. J., concur in part and dissent in part.