Stilling v. Utah Board of Pardons & Parole , 308 Utah Adv. Rep. 39 ( 1997 )

GREENWOOD, Judge:

Appellants challenge the trial court’s summary judgment in favor of appellee, Steven M. Stilling. The trial court ruled that the Utah Board of Pardons and Parole (the Board) acted beyond its statutory and constitutional authority by imposing restitution as a condition of Stilling’s parole, when the original sentencing court had not ordered restitution.

Subsequent to oral argument in this case, the Utah Supreme Court issued its opinion in Monson v. Carver, 928 P.2d 1017 (Utah 1996) (plurality opinion). That opinion requires reversal in this case, as the supreme court held that the Board has the constitutional authority to order restitution as a condition of parole even if the sentencing court did not order restitution as part of the underlying sentence. Id. at 1023-26. The supreme court also rejected petitioner’s argument that the restitution order violated ex post facto laws and the prohibition against double jeopardy. Id. at 1025-28.

In addition, although the parties in this case argue about the scope of the Board’s power, conferred in Utah Code Ann. §§ 77-27-5 and -6 (Supp.1995), the supreme court in Monson stated that the Utah Constitution “confers plenary authority on the Board to impose conditions of parole, even absent legislation specifying particular conditions,” id. at 1025, and that restitution is not, itself, punishment, id. at 1026-28. The court also stated, referring to the same statutes at issue here, that “the Board had express statutory authority at [Monson’s] parole rehearing to order restitution as a condition of his parole.” Id. at 1025.¹

We are compelled, therefore, to reverse the trial court’s ruling that the Board lacked the authority to order Stilling to pay restitution as a condition of parole.

Additionally, we respond to portions of our colleague, Judge Davis’s, concurring opinion. Judge Davis concludes that the sentencing trial court failed to consider ordering restitution at all and thus, the Board could do so as a condition of granting parole. We disagree.

On February 13,1985, following his conviction on three counts of robbery, the original trial court sentenced Stilling to three concurrent indeterminate terms of one-to-fifteen years at the Utah State Prison. The trial court did not order restitution, but entered five dashes, “.,” on a form entitled “Judgment, Sentence, and Commitment to Utah State Prison,” in the space designated for a restitution award.

In August 1993, the Board granted Stilling a May 1994 parole date conditioned upon his payment of restitution. Subsequently, at an April 28, 1994, restitution hearing, the Board set Stilling’s restitution for the three robbery offenses at $17,305.00.²

We believe the “Judgment, Sentence, and Commitment to Utah State Prison” form reflects that the sentencing court considered the issue of restitution by its insertion of “.” in the blank designated for restitution. If the sentencing court had intended to order restitution, it would have inserted a numerical amount in the restitution blank, rather than five dashes.

Further, even if the sentencing trial court had failed to place anything in the restitution space and simply left it blank, it would be inappropriate to conclude that the trial court overlooked its statutory duty of considering and ordering restitution unless it found restitution to be inappropriate. See Utah Code Ann. § 76-3-201(3)(a) (Supp. 1983). Coneededly, the sentencing court may have neglected to make the required findings regarding the inappropriateness of restitution, but that does not vitiate its order regarding restitution, it merely opens the door for a remand on appeal for the required findings, had Stilling filed a timely notice of appeal. See State v. Haston, 811 P.2d 929, 936-37 (Utah App.l991)(remanding for supplementary findings regarding restitution order), rev’d on other grounds, 846 P.2d 1276 (Utah 1993). The original trial court’s sentence, however, is not before us in this case, and we lack a record of either the sentencing filings or the hearing, having only the record following Stilling’s Petition for Extraordinary Relief. Therefore, we must assume the trial court considered restitution in this case and determined it was inappropriate. See State v. Wetzel, 868 P.2d 64, 67 (Utah 1993); State v. Blubaugh, 904 P.2d 688, 699 (Utah App.1995) (stating appellate courts assume regularity of court proceedings when lack adequate record on appeal), cert. denied, 913 P.2d 749 (Utah 1996). Accordingly, we cannot agree with Judge Davis that the Board had the authority to sua sponte impose restitution as a condition of parole because the sentencing trial court failed to fulfill its statutory duty to do so. Furthermore, the supreme court’s opinion in Monson does not so limit the Board’s authority.

We reverse and remand for proceedings consistent with this opinion.

BILLINGS, J., concurs.

1 . In Monson, the supreme court declined to consider Monson's argument that separation of powers principles were violated because of lack of full appellate review under Rule 65 B of the Utah Rules of Civil Procedure. Stilling makes a somewhat different separation of powers argument, citing Salt Lake City v. Ohms, 881 P.2d 844, 852-53 (Utah 1994). However, given the supreme court’s opinion that the Board has constitutional authority to impose restitution, sua sponte, and that restitution is a civil rather than a criminal penalty, it is unlikely this argument would prevail, and we do not address it further.

2 . The Board’s order also imposed additional restitution payments for a separate aggravated robbery conviction and extradition charges associated with an escape from custody. Stilling does not challenge the imposition of these restitution conditions.