State v. Walden

Although concurring in the majority opinion, I think some aspects of this case merit further comment.

While the restitution orders are indeed silent as to the total amount of restitution ordered, in my opinion the restitution orders nevertheless reflect with sufficient clarity that each defendant is responsible for complete restitution, and that each was to pay $1,500 toward that obligation within ninety days of the final judgment.

As a practical matter, the orders could not be much more specific. The judgments in these cases contemplate probationary periods of up to five years. So long as the restitution order is sufficiently clear as to the total amount to be paid, we must recognize the need for flexibility in the trial court's administration of the restitution process, and that it is a prerogative of the trial court to delegate to its probation department the responsibility for establishing and revising, if necessary, the probationer's payment plan. Probation cannot be revoked in the absence of an evidentiary hearing. Hence, a probationer will always have the opportunity to contest in the trial court, and on appeal, the reasonableness of the probation department's payment schedule, as applied to his particular circumstances. I think it neither necessary nor wise to require the trial court, at the outset of the up to five-year probationary period, to key the total amount of restitution to what then appears to be the probationer's ability to pay. Nor do I think it necessary or wise to require the trial court to establish a long-range repayment plan. The fortunes of probationers are subject to unpredictable upswings and downturns over the probationary period. All that should be required is that the probationer be accorded reasonable treatment under his particular circumstances. The probation department is in a better position than the trial court to assess these circumstances. The reasonableness of the probation department's conduct relative to the probationer's circumstances is always subject to judicial scrutiny, first in the trial court, and then on appeal. I do not suggest for a moment that a probationer's failure to make the total restitution ordered should result in revocation of probation if, in fact, the order proves, over time, to be unreasonable as applied to his particular circumstances. My thinking is the same as to nonpayment under the probation department's payment schedule.

The orders in these cases were not necessarily unreasonable when made. Although complete restitution within five years may presently appear to be an impossibility, the defendants' future circumstances may be such as to enable them to make complete restitution. A winning lottery ticket is all that it would take. Nor do I think the $1,500 installment payment order was necessarily unreasonable when made and, remarkably, only Walden argues that it was. Brown, on the other hand, wants this court to order that he pay $500 per month for five years. Although Walden contends he has but $65 disposable net income per month, a restitution order, as the majority observes, need not necessarily be keyed to net disposable income. The contention that the restitution orders were unreasonable when made is without merit.

The trial court improperly revoked defendants' probation. The majority cites Bearden v. Georgia, which is dispositive. The trial court made it abundantly clear that the only relevant question was whether defendants had made timely payments of restitution. Under Bearden, this inquiry was too narrow, and the determination to revoke, made solely on the fact of non-payment, was improper.

The trial court indicated it ordered each defendant to make a $1,500 payment within ninety days to determine whether they could indeed make restitution and, hence, qualify for probation. While this criterion for probation eligibility is legitimate under Bearden, the trial court's method was flawed. In placing defendants on probation, the trial court "reflect[ed] a * * * determination * * * that the State's penological interests * * * [did] not require imprisonment." Bearden, supra, at 670. Having made that determination, the trial court's inquiry could not be restricted thereafter to the sole question of whether defendants had paid.

I think the trial court could have assessed defendants' ability to make restitution and, thus, their worthiness of probation, without running afoul of Bearden. After receiving the presentence reports, the court could have postponed final disposition for ninety days, and told defendants that they would be considered for probation if they appeared in court ninety days hence with $1,500 in cash, money order, or certified check in hand. The determination of whether the state's penological interests required imprisonment would have thereby been delayed until the trial court had the information it said it needed to determine whether defendants were worthy of probation. At that point, the determination to place defendants on probation or sentence them to prison could have been made, together with the appropriate orders implementing that determination.