Simmons v. State

574 So. 2d 1046, 1990 Ala. Crim. App. LEXIS 2089, 1990 WL 255862
CourtCourt of Criminal Appeals of Alabama
DecidedDecember 28, 1990
DocketCR 89-885
StatusPublished
Cited by3 cases

This text of 574 So. 2d 1046 (Simmons v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmons v. State, 574 So. 2d 1046, 1990 Ala. Crim. App. LEXIS 2089, 1990 WL 255862 (Ala. Ct. App. 1990).

Opinions

TYSON, Judge.

This is an appeal from the Circuit Court of Lawrence County where the appellant, Randy Scott Simmons, entered a guilty plea to theft of property in the third degree. (R. 136-136A.)

On March 23, 1989, the appellant was indicted by the grand jury of Lawrence County for burglary in the third degree and theft of property in the second degree, in violation of § 13A-7-7 and § 13A-8-3, Code of Alabama 1975. (R. 140.) The appellant was charged in the indictment with taking: thirty-five (35) sheets of paneling; two (2) commodes; one (1) set of kitchen cabinets; seven (7) window units; nine (9) door units; one (1) set of door steps; ten (10) wall plugs; ten (10) light switches; an assortment of carpet. (R. 140.)

On May 19, 1989, the appellant plead guilty to theft of property in the third degree. (R. 126-136A.) The trial court sentenced the appellant to nine months imprisonment in the county jail and set a restitution hearing on the matter. (R. 155-156.)

On August 10, 1989, the trial court granted the appellant's application for probation and suspended his sentence. (R. [1047]*1047136A.) A restitution hearing was held on December 18, 1989. (R. 4-134.)

On April 17, 1990, the trial court ordered the appellant to pay restitution in the amount of $10,000. (R. 181-183.)

Ms. Genevieve McCullough, the owner of the house in question, was the first witness to testify at the restitution hearing. Ms. McCullough purchased the house and eight acres of land for $26,000 at a public auction in 1983. (R. 10, 28.) Ms. McCullough testified that in addition to the items listed in the indictment a sheet of peg board, a bat of insulation, a breaker box, and a central air and heat unit were also missing from the house. (R. 17-18.) Ms. McCullough received an estimate for the value of the missing items from Mr. Coffey, a subcontractor for Lowe’s. (R. 24.)

Ms. McCullough also included as part of her restitution a claim for interest that she paid on the money she borrowed to buy the property from 1984 through 1989. (R. 22-23.) Ms. McCullough testified that because of the damage done to the house by the appellant it was no longer in marketable condition. (R. 24.)

Mr. Gene Coffey, who is familiar with the cost of building supplies, prepared an estimate for the value of the items taken from the house. (R. 50, 51.)

Mr. Coffey gave the following estimate for the missing items:

sheets panelling $1,137.50 LO CO
colored commodes 1,100.00 CQ
window units 1,225.00 t—
door units 1,920.00
set of kitchen cabinets 7,840.00 r — I
set of door steps 225.00 r*H
wall plugs 100.00 O 1 — I
red tub and shower stall 750.00 r-H
bat of insulation 29.95 r-H
peg board 17.50 i“H
breaker box 750.00 † — f
central air and heating unit 6,500.00 (R. 55-65.) i-H

The appellant testified at the restitution hearing. (R. 110) He testified that the only items he took from Ms. McCullough’s house were those items listed in the statement he gave law enforcement personnel. (R. 116, E.R. 20.) The appellant admitted in his statement to taking: a red bathtub and shower stall; one bat of insulation; one peg board; one 7 X 24 closet door; six cabinet drawers; hardware from the kitchen; seven 4x8 sheets of panelling and seven wall plug boxes. (R. 138, E.R. 20.)

This appeal follows.

I

The appellant first contends that the restitution award was not based on the proximate cause of the offense committed by the appellant. The appellant also contends that the restitution order does not meet the requirement of § 15-18-66, Code of Alabama 1975, in that the damages were not pecuniary in nature, but punitive.

In Ex parte Clare, 456 So.2d 357, 358 (Ala.1984), the Alabama Supreme Court stated:

“ ‘[The restitution] statute authorizes restitution to “fully compensate all victims of [criminal] conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof.” Code 1975, § 15-18-65 (1982 Repl.Vol.). It is clear to us from this new enactment that it is the intent of the legislature that victims be fully compensated through restitution. The Act authorizes restitution by defendant for any “criminal activity” on his part against the victim. “Criminal activity” is defined as “[a]ny [1048]*1048offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.” Code 1975, § 15-18-66 (1982 Repl. Vol.).’ ”

The State presented evidence as to the value of the items the appellant admitted taking when he plead guilty to theft as charged in the indictment and to the value of the items the appellant admitted taking in his statement to the police. (R. 151, 152, 140, 138.) The value of the items total $14,344.95:

“(1) 35 sheets — 4 x 8 panelling $1,137.50
"(2) 2 colored commodes $1,100.00
“(3) 7 window units $1,225.00
“(4) 9 door units $1,920.00
“(5) set of kitchen cabinets $7,840.00
“(6) set of door steps $ 225.00
“(7) 10 wall plugs $ 100.00
“(8) Red rub and shower stall $ 750.00
“(9) Bat of insulation $ 29.95
“(10) Peg Board $ 17.50”

In addition the State presented evidence of interest the victim paid on the money she borrowed to buy the house which totaled $13,005. (R. 23.) Because of the damage done to the house by the appellant it was no longer in a marketable condition.

It is clear that the restitution proved by the State was proximately related to the offense committed by and to which the appellant entered a plea of guilty. Therefore, the restitution order of $10,000 was not punitive in nature.

II

The appellant also argues that the restitution order entered into by the court does not comply with § 15-18-69, Code of Alabama 1975, which requires the court to state its findings and the underlying facts and circumstances thereof. A review of the order reveals that the trial court complied with the requirement of § 15-18-69:

“... This court further finds, pursuant to § 15-18-69, Code of Alabama, 1975, as amended, that the Defendant, Randy Scott Simmons, committed theft of the property owned by the victim, Genevieve McCullough, by taking and removing miscellaneous fixtures and building materials from a house owned by the victim located in the Mt. Hope community. Numerous photographs and documentary evidence were admitted and reviewed by the Court at the restitution hearing touching and concerning damage done to the victim’s property and the pecuniary loss that she suffered. The Court notes that there is a conflict in the testimony as to the total pecuniary loss suffered by the victim and that admitted done by the Defendant.

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Related

Stutts v. State
897 So. 2d 428 (Court of Criminal Appeals of Alabama, 2004)
Howard v. State
639 So. 2d 555 (Court of Criminal Appeals of Alabama, 1993)

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Bluebook (online)
574 So. 2d 1046, 1990 Ala. Crim. App. LEXIS 2089, 1990 WL 255862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-state-alacrimapp-1990.