dissenting.
I.
I agree that in considering aggravating circumstances, the court is not restricted to those specific factors set forth in I.C. 85-*117038-1-7(b). Ballard v. State (1988) Ind., 531 N.E.2d 196. I do not agree, however, that here the factors recited by the court as aggravating cireumstances, or any one of them, permits imposition of consecutive sentences.
The majority opinion appropriately observes that the trial court erred in holding the secret nature of the crime to be an aggravating circumstance. Such secrecy, as noted, "is a common element in all similar crimes." P. 1169. Similarly, in my view, the fact that Campbell violated the trust of the University is the very essence of the acts of theft and forgery themselves. That violation of trust may not be considered, in addition, as an aggravating circumstance. Linger v. State (1987) 4th Dist. Ind.App., 508 N.E.2d 56.
The trial court further erred in translating the inferred moral outrage or sense of disappointment within the geographical and academic communities into a conclusion that these groups were actual victims of the criminal offenses. Such is tantamount to stating that every crime committed should carry an enhanced sentence because all society is the victim of crime.
For the same general reasons I disagree that violation of the trust and confidence of the community constitutes an aggravating circumstance. See Fointno v. State (1986) Ind., 487 N.E.2d 140; Cunningham v. State (1984) 4th Dist. Ind.App., 469 N.E.2d 1 (Young, J. concurring), trans. denied.
Accordingly I would direct the trial court to order the executed sentences be served concurrently.
IL.
The sentencing order does not, as stated by the majority, provide that "the suspended sentences are to run concurrently with each other but consecutively to those requiring his incarceration." Slip opinion, p. 12. Such may be a reasonable attempt to reconstruct the judgment in order to accomplish a goal of having a five year period of probation begin after termination of the executed sentences. But we are not vested with authority to order consecutive sentences when the trial court has not done so. Here, the only provision for consecutive sentences is in that portion of the decree which states:
"The sentence as to Count 164 is ordered committed and to be served consecutive to Count 168." Record at 398.
Other than as expressly provided by statute, a court may not order sentences to be served consecutively. Kendrick v. State (1988) Ind., 529 N.E.2d 1311. It is clear, therefore, that the sentences upon Counts 1, 8 and 81, although suspended, commenced upon the same date as did the executed sentences upon the other two counts. Stuck v. State (1972) 259 Ind. 291, 286 N.E.2d 652; Williams v. State (1986) 2d Dist. Ind.App., 498 N.E.2d 1382, trans. denied. Accordingly, as provided by I.C. 35-50-2-2(c) (West's 1989 Supp.) the terms of probation in connection with the suspended sentences could end "not later than the date the suspended sentence[s] expire[d]." The attempt by the trial court to have a five year period of probation begin upon Campbell's release from incarceration is without effect. See Slayton v. State (1989) 2d Dist. Ind.App., 534 N.E.2d 1130; Willis v. State (1986) 1st Dist. Ind.App., 498 N.E.2d 1029; McVey v. State (1982) 2d Dist. Ind.App., 438 N.E.2d 770.
IIL
The final area of my disagreement with the majority decision concerns the matter of the trial court's provision for an alternative to the five $10,000 fines, ie., the making of a $40,000 contribution to the University. Although Campbell couches his argument in terms of the trial court's disallow ance of a federal income tax deduction in the event of such contribution,1 I discern more basic defects in the order.
The order which provides for a $40,000 "contribution" to the University may not *1171be considered an equivalent to an order for partial restitution. The judgment required Campbell to make "total restitution ... after all civil cases are concluded." Record at 898. It is well established that an order of restitution may not exceed the amount of the loss caused by the criminal act. Hipskind v. State (1988) 3d Dist. Ind.App., 519 N.E.2d 572, trans. denied. In light of the order for "total restitution," the requirement of an additional $40,000 payment, even as an alternative to a fine, exceeds the loss sustained by the University.2
More serious than the technical deficiencies of the contribution alternative is, I believe, the likelihood of abuse inherent in such arrangements. At the outset, it would appear that a charitable contribution is not within the contemplation of I.C. 85 88-2-2(a)(14) (West's 1989 Supp.) which, with regard to probation, permits the court to order satisfaction of "other conditions reasonably related to the person's rehabilitation." Furthermore, as earlier noted, it cannot be justified as the equivalent of restitution. In the context of the judgment here involved it is quite simply a substitute for a punitive fine. Such diversion of funds was criticized in United States v. Missouri Valley Construction Co. (1984 C.A. 8th Cir.) 741 F.2d 1542, 1549-1550;
"We note also that the effect of the monetary-payment conditions of probation in this case is to transfer to a private entity designated by the district court a substantial sum of money that would otherwise likely have gone, in the form of a fine, into the federal treasury."
To the same effect is United States v. John A. Beck Co. (1985 C.A. 6th Cir.) 770 F.2d 83.
In a case factually similar to Missouri Valley Construction Co., supra, involving highway contract bid-rigging, the trial court in United States v. Wright Contracting Co. (1984 C.A. 4th Cir.) 728 F.2d 648, suspended all but $50,000 of a $400,000 fine upon condition that the defendant contribute $175,000 to a city sponsored jobs program. It was the stated purpose of the trial judge to "put back into the immediate local community some of the illegal gains" achieved by the defendant from that community. 728 F.2d at 650. In striking down the order, the Court of Appeals held:
"Creative sentencing of the kind here undertaken, for example, necessarily involves the court in selecting particular third persons to become beneficiaries of the probationer's assets-presumably acting in some way as 'surrogates' for the public as the actually 'aggrieved party' Such selections of course carry financial benefits for which there may be quite legitimate rival claimants among potential 'surrogates,' whether known or unknown to the court. Where the sums imposed for payment are also fixed by the court without reference to any measurable losses or damage, the court exposes itself to possibly justifiable and unanswerable criticisms both in respect of the particular beneficiaries selected and the specific sums awarded them. The danger thereby created, without compensating benefit, for unnecessary involvement of the criminal justice system in peripheral controversy is obvious." 728 F.2d at 658.
Closer to home and from a perspective of judicial ethics is an Advisory Opinion of the Indiana Commission on Judicial Qualifications (December 16, 1986).
In disapproving a plea agreement which would require a defendant to contribute to a county "Victim Fund" the Commission stated:
"'This is not dissimilar to the practice examined by the Supreme Court of Missouri in a cage involving contributions by criminal defendants to a "Library Fund." In re Storie, 574 S.W.2d 369 (Mo.1978). The Court concluded that even though there was no evil intent on the part of *1172the judge, "the practical effect to the public is that of a 'pay-off'.
* * # * * *
The members of the commission are of the opinion that the above described vice-tim fund program does suggest decisional favor predicated on financial contribution. Accordingly, the Commission is of the further opinion that a judge would violate Canon 2 of the Code of Judicial Conduct by permitting plea agreements of this nature." 3
For all of the foregoing reasons, I would reverse and remand for resentencing.
. Campbell's argument would seem to have merit, at least to the extent that the legality of federal income tax deductions is a matter of Federal Law. See In re Marriage of Davidson (1989) 1st Dist. Ind.App., 540 N.E.2d 641; but see In re Marriage of Baker (1990) 1st Dist. Ind.App., 550 N.E.2d 82.
. The restitution order may well be deficient in another respect. It leaves the actual amount to be paid uncertain and dependent upon future events. As a condition of probation it is therefore not sufficiently specific. See Harder v. State (1986) 4th Dist. Ind.App., 501 N.E.2d 1117; Walker v. State (1984) 3d Dist. Ind.App., 467 N.E.2d 1248.
. Cf., United States v. Posner (S.D.Fla.1988) 694 F.Supp. 881. There, the maximum fine had been imposed upon defendant for tax fraud involving overevaluation of charitable contributions. In addition, the court ordered community services of twenty hours per week for five years. Defendant was directed to formulate and implement a plan for alleviating the homeless problem in south Florida. The defendant voluntarily made a substantial monetary contribution which was incorporated into the probation order and which was held to be merely incidental to the underlying rehabilitative and community service aspects of the probation. The terms and conditions of probation were held permissible and within the scope of the U.S. Probation Act.