State ex rel. B.A.

104 So. 3d 833, 12 La.App. 3 Cir. 659, 2012 WL 6602272, 2012 La. App. LEXIS 1682
CourtLouisiana Court of Appeal
DecidedDecember 19, 2012
DocketNo. 12-659
StatusPublished
Cited by6 cases

This text of 104 So. 3d 833 (State ex rel. B.A.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. B.A., 104 So. 3d 833, 12 La.App. 3 Cir. 659, 2012 WL 6602272, 2012 La. App. LEXIS 1682 (La. Ct. App. 2012).

Opinions

PETERS, J.

hOn September 23, 2011, the State of Louisiana (state) charged the juvenile in this matter, B.A., with the offenses of simple burglary, a violation of La.R.S. 14:62, and criminal damage to property valued at more than $500.00 but less than $50,000.00, a violation of La.R.S. 14:56. On November 9, 2011, the juvenile admitted to the simple burglary offense and was adjudicated a juvenile delinquent. The juvenile does not contest his adjudication on appeal. Instead, he asserts that the restitution obligation imposed on him in the dispositional phase of the juvenile proceeding is unreasonable and excessive, and that the judge erred in not setting a payment schedule for the restitution. For the following reasons, we set aside the judge’s order of restitution and remand the -matter to the juvenile court for the imposition of an order of restitution consistent with this opinion and to set a payment schedule for this restitution. We further remand the matter with instructions to correct certain errors patent on the face of the record as set forth herein.

DISCUSSION OF THE RECORD

At trial on November 9, 2011, the juvenile admitted that he broke into the Lafayette Middle School (Middle School) in July of 2011, taking a number of items from the school and damaging other property on the premises. On the same day, the juvenile also admitted to a separate delinquent act involving an assault on his sister, but that matter is not before us on appeal (although we note that the sentences overlap). After accepting the admission, the judge imposed a disposition of one year in the custody of the Louisiana Department of Public Safety and Corrections pursuant to La.Ch.Code art. 897(D) in the simple burglary charge; suspended that disposition and placed B.A. on probation for one year pursuant to La.Ch.Code art. 897(E); and imposed a number of conditions on B.A.’s probation, | ¡including restitution to the Middle School. In addressing restitution, the judge stated that restitution would be a specific condition of probation, but noted that the amount to be imposed would be “subject to a restitution hearing.” The only other reference to restitution at this time appears as a $1,935.00 notation made by the juvenile judge on B.A.’s probation order.

During a March 28, 2012 hearing on the restitution issue, a different juvenile judge presided, and Monique Magee, the principal at the Middle School, was the only witness for the state. She provided the [835]*835juvenile court with a list of the items reported missing by the teachers at the school as well as those which were damaged. The missing items and their values were listed as follows:

Dell laptop computer-$2869.87
Motorola walkie-talkie-CLS 1410-$178.66
Tobisha 19-inch flat-screen tv/dvd player-$235.95
Jump drives-$12.99 (10 were missing)
Jump drive case-$5.00
Remote control for a promethean board-$76.30
Treasure box trinkets for incentives-$10
Fiberglass tape-$60
Wires missing for computer-$30
Sony tape recorder-$35.00

Additionally, the damaged items and their corresponding values were listed as follows:

Dell flat-screen monitor-$270
Science equipment-$45.00
Dell laptop computer Latitude XT2-$2369.87

The total amount of loss and damage stated on the exhibit was $5,805.65. However, when added, the actual total as listed is $5,815.55. Additionally, Ms. Magee testified that other items were reported as missing or damaged by various teachers after the compilation of these lists.

On cross-examination, Ms. Magee acknowledged that most of the values listed were derived from the initial purchase invoices, which were maintained at |athe Middle School and which she failed to bring to trial to support her testimony. Furthermore, the values listed did not take into account any depreciation that may have occurred. According to Ms. Magee, the damaged Dell laptop computer was two years old when it was taken, as was the Tobisha nineteen-inch flat screen television; the promethean board was three years old; and the flat screen monitor was four years old. Additionally, she did not separate the personal property of the teachers from that of the school in her testimony.

B.A. testified at the restitution hearing, as well. He was fifteen years old at that time, was not employed, had never been employed, had no trust accounts or funds, had no money of his own, and could not even afford to pay for his legal representation.

Upon completion of the evidence, B.A.’s counsel noted to the juvenile judge that the two other juveniles involved in the burglary had their charges resolved in another division of the court, and that they had not been ordered to pay any restitution. Even though restitution was ultimately not imputed to the other two juveniles, this fact may explain why the Middle School exhibit contained a written notation by the former juvenile court judge on B.A.’s probation order that the total damage was $1,935.22, or nearly one third of $5,805.00. Regardless, without stating any reasons for the record, the juvenile judge set restitution for B.A. at $5,805.00 and ordered that it be collected through the probation department of the juvenile court.

In this appeal, B.A. asserts two assignments of error:

1) the trial court erred in ordering restitution of $5,805.00 as a condition of probation as it is unreasonable, excessive, based on insufficient information, far exceeds his ability to pay, and is not reasonably related to his rehabilitation; and
2) the trial court erred in failing to set a payment schedule for the payment of the restitution.

|4We find merit in both assignments of error.

[836]*836OPINION

If delinquency procedures are not provided for in the Louisiana Children’s Code (Children’s Code) or other specific laws, the juvenile court shall follow the procedures set forth in the Louisiana Code of Criminal Procedure (Code of Criminal Procedure). La.Ch.Code art. 104(1). With regard to a delinquent’s obligation to make restitution, La.Ch.Code art. 897(B)(2)(c) provides that the juvenile judge may impose “[a] requirement that the child make reasonable restitution to any victim for any personal or property damage caused by the child in the commission of the delinquent act.”

To determine what constitutes reasonable restitution, we look to the Code of Criminal Procedure as the Children’s Code is silent on the matter. State ex rel. K.J., 11-266 (La.App. 4 Cir. 8/17/11), 71 So.3d 557. In reviewing the applicable provisions of the Code of Criminal Procedure, we first note that restitution is not reasonable when it exceeds the actual pecuniary loss. La.Code Crim.P. art. 895.1(A)(1). Based on Ms. Magee’s undisputed testimony, the evidence before us establishes that the $5,805.00 restitution exceeds the pecuniary loss to the Middle School. Ms. Ma-gee testified that the requested restitution was based on the purchase price of the stolen and damaged items and not their actual value at the time of the offense.

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Cite This Page — Counsel Stack

Bluebook (online)
104 So. 3d 833, 12 La.App. 3 Cir. 659, 2012 WL 6602272, 2012 La. App. LEXIS 1682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ba-lactapp-2012.