State v. Reedeker , 1975 Utah LEXIS 687 ( 1975 )

HENRIOD, Chief Justice:

Appeal from a conviction for theft. Reversed with instructions. I agree with the verdict, but not the sentence. It seems reasonable to concede that:

I. The statutes say that 1) The sentence can be: Not more than five years and/or $5,000 fine, and 2) that probation may be given on condition the accused makes restitution “for the actual damages or losses caused by the offense when he is convicted; 3) that here the offense caused a $563.80 loss; 4) that the judge sentenced the accused to the maximum penalty of not more than five years and a $5,000 fine; 5) that the court offered him, not a suspension of anything, but a naked probation, conditioned that in addition to the five years and the $5,000 fine assessed against the defendant, and the $563 amount the accused was ordered to pay as “restitution,” —that the accused “make restitution” of $15,170 more.

So far as this record is concerned, the $15,170 seems to be a stranger to this case, but almost obviously represents some other alleged or assumed peculation or aggregate of offenses without specificity in the record here. This excrescence on the sentence imposed appears to be something akin to an alternative to pay up something not found in the record or be imprisoned for debt. The amount completely is divorced from the only thing before the trial court in this particular case, a $563 involvement only, not the $15,170. It would seem to have some sort of affinity to a situation where one charged with and convicted of larceny were confronted with an offer of probation, if he would plead guilty to another larceny charge never filed, never heard, and for which he was never convicted. We cannot subscribe to such a result.

Probation is something else than suspension of part of the sentence, which latter was not offered here as an alternative. Had it been, even then would seem to be procedurally and substantively abortive, without something further by way of a proper undertaking establishing culpability. The accused here, after paying, for example, $10,000 of “restitution,” — all he could muster, perhaps, — could then be jailed for up to five years for violation of the probation, which no doubt would not hold under a suspended sentence.

The dissent volunteers, apparently, without anything more than conjecture, that exhibits show possible but unproved theft of $4,000, — which have nothing to do with $563, — that may not have been all of the thefts of the defendant. Such philosophical gifts are ipse dixits and non sequiturs, —all as unwarranted bargain pieces in exchange for a result quite uncalled for in the case here.

The dissent’s statement that “defendant’s lawyer¹ says that the defendant prefers the sentence to remain rather than permit the trial judge to reconsider the conditions of probation” does not justify a diversionary reason to ignore the fact that the maximum penalty for this particular charge fully satisfies statutory requirements in this case and the accused should not be penalized more to satisfy some other untried and/or unproved charge. Elsewise, there would seem to be an unauthorized employment of the rack for the dock.

The case is reversed with instruction to eliminate the additional requirement of restitution to some person or corporation not particeps to this case, or to pursue further proceedings within the statutory limitations applicable to the facts of this case.

TUCKETT, J., concurs.

1 . In oral argument.