State v. Zirfas , 1991 Mo. App. LEXIS 1789 ( 1991 )

LOWENSTEIN, Judge,

concurring.

This court has no choice but to affirm the judgment despite the knowing entry of guilty pleas of these two men. They are saved of a judgment ordering restitution, § 546.630 and having a lien on their estates, § 546.640, only because the statutory language does not contemplate recovery of ill-gotten gains when sentence is suspended. Where there is no sentence and therefore no final conviction there can be no restitution, and no lien may be enforced. Holker v. Hennessey, 141 Mo. 527, 42 S.W. 1090, 1095 (Mo.1897).

Sections 546.630 and .640 should be amended to allow a trial judge to order restitution where sentence is suspended. This is especially so where there is no question of the defendant’s guilt and the defendant is allowed to avoid incarceration and being branded a felon.

It is not however within the court’s province to afford restitution under these facts which call for restitution.

Judicial dissatisfaction with a statutory scheme is not a sufficient reason to ignore or distort plain legislative intent; the remedy, if any, lies with the General Assembly and not with the courts.

Springfield General Osteopathic Hospital v. Industrial Commission, 538 S.W.2d 364, 371 (Mo.App.1976).

If restitution as opposed to incarceration is to be encouraged, this would be a good place to start. The general assembly should be urged to enact the supporting legislation.