State v. Hayes , 113 N.C. App. 172 ( 1993 )

437 S.E.2d 717 (1993) 113 N.C. App. 172

STATE of North Carolina
v.
Wesley Royal HAYES, II.

No. 9318SC299.

Court of Appeals of North Carolina.

December 21, 1993.

Atty. Gen. Michael F. Easley by Asst. Atty. Gen. Floyd M. Lewis, Raleigh, for State.

Harrison, North, Cooke & Landreth by A. Wayland Cooke, Greensboro, for defendant appellant.

ARNOLD, Chief Judge.

The defendant here presents two valid assignments of error. He contends that the trial court erred in failing to consider, or ignoring, his financial resources in ordering restitution. The defendant further contends that the trial court erred in setting restitution greater than he can pay.

N.C.Gen.Stat. § 15A-1343(d) (1988), which governs when restitution is a condition of probation, reads in pertinent part as follows:

(d) Restitution as a Condition of Probation.—As a condition of probation, a defendant may be required to make restitution or reparation to an aggrieved party ... for the damage or loss caused by the defendant arising out of the offense or offenses committed by the defendant. When restitution or reparation is a condition imposed, the court shall take into consideration the resources of the defendant, including all real and personal property owned by the defendant and the income derived from such property, his ability to earn, his obligation to support dependents, and such other matters as shall pertain to his ability to make restitution....

Restitution is "compensation for damage or loss as could ordinarily be recovered by an aggrieved party in a civil action." Id. Furthermore, restitution is intended "to promote rehabilitation of the criminal offender," as well as to compensate victims of crime. State v. Burkhead, 85 N.C.App. 535, 536, 355 S.E.2d 175, 176 (1987).

In State v. Smith, the defendant was convicted of misdemeanor death by vehicle, given a two year suspended sentence with five years probation, and ordered to pay $500,000.00 in restitution. State v. Smith, 90 N.C.App. 161, 368 S.E.2d 33 (1988), aff'd, 323 N.C. 703, 374 S.E.2d 866, cert. denied, Smith v. North Carolina, 490 U.S. 1100, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989). This Court vacated the restitution order, which would have required the defendant to pay $100,000.00 per year, stating that "[c]ommon sense dictates that only a person of substantial means could comply with such a requirement." Id. 90 N.C.App. at 168, 368 S.E.2d at 38.

In this case, the defendant presented evidence which showed that he (1) earns approximately $800.00 a month bagging groceries and stocking food at Harris Teeter, (2) pays approximately $350.00 per month in child support, (3) lives with his mother and shares a car with her, (4) is deaf in one ear and hard of hearing in the other, (5) has recently completed bankruptcy proceedings, and (6) has substantial medical problems, including a recent brain tumor. The court ordered restitution of approximately $208,899.00, payable over a five year probationary period, necessitating payments of over $3,000.00 a month in order to comply with this condition. As in Smith, common sense dictates that this defendant will be unable to pay this amount. The trial court failed to heed the language of G.S. § 15A-1343(d) which provides that "the court may order partial restitution or reparation when it appears that the damage or loss caused by the offense or offenses is greater than that which the defendant is able to pay." While we applaud efforts to alleviate the harm done to crime victims, we hold that the trial court erred in conditioning probation on an amount of restitution the defendant clearly cannot pay. On remand, the trial court is to reconsider what amount, if any, defendant should be required to pay as restitution.

Accordingly, the judgment is

Vacated in part and remanded.

WELLS and EAGLES, JJ., concur.