T.B. v. State

819 So. 2d 108, 2001 WL 727354
CourtCourt of Criminal Appeals of Alabama
DecidedJune 29, 2001
DocketCR-00-0499
StatusPublished
Cited by2 cases

This text of 819 So. 2d 108 (T.B. 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
T.B. v. State, 819 So. 2d 108, 2001 WL 727354 (Ala. Ct. App. 2001).

Opinion

McMILLAN, Presiding Judge.

The appellant, T.B. II, a juvenile, was charged with harassment, for striking B.C. about the mouth and causing damage to B.C.’s mouth and teeth. On June 6, 2000, the juvenile -court adjudged him delinquent, based upon his admission that he had committed the offense. The court sentenced him to six months’ probation and ordered him to pay court costs and an amount to the victims compensation fund. The sentencing order did not order him to pay restitution to the victim. On November 7, 2000, the juvenile court conducted a restitution hearing and ordered the appellant to pay restitution of $15,500. The court directed the victim to submit to the court any additional medical expenses aris[110]*110ing out of the incident as they occurred. The court denied the appellant’s motion to alter, vacate, or amend the restitution order or, in the alternative, for new trial.

At the hearing on November 7, the court discussed the amount of restitution to be paid. The court determined that the restitution would be split between the appellant and E.Y., the codefendant. The victim’s mother informed the court that the victim had lost his teeth and had had several surgeries. She said that he would have to have at least four more surgeries before his teeth could be replaced. The court disallowed any anticipatory expenses and ordered each defendant to pay one-half of the victim’s actual dental bills.1 The appellant’s counsel argued that the amount seemed “pretty extravagant” and asked if a doctor could testify concerning the charges. He attempted to argue further, but the court stopped him. The appellant’s probation officer noted that the appellant had not been present at the “initial hearing” on the restitution, and the court acknowledged that that had been an oversight. The appellant’s counsel objected on the basis that the court, in setting restitution, had not considered the purpose of restitution in the juvenile court, as stated in D.J.W. v. State, 705 So.2d 521 (Ala. Crim.App.1996). The court interrupted the counsel’s objection and left the bench, stating, “Well, make [your objection] in my absence.” The counsel then objected for the record that the court had not properly considered the rehabilitative purpose of restitution in the juvenile court or the factors required by the juvenile statute to be taken into account. He further objected that the court had abused its discretion because all of the medical or dental expenses had not been submitted and there had been no testimony from a doctor that the charges were reasonable and necessary. The prosecutor responded that all of the charges had been based on medical records and invoices provided by the victim to the court.

I.

The appellant contends that he did not have an adequate opportunity to be heard and to dispute the evidence. He further contends that there is no legal evidence to sustain the court’s restitution order because no expert medical testimony was offered at the restitution hearing. More specifically, he argues that expert testimony was required to prove permanent injury, proximate cause of the injury, present and future medical expenses, and whether the medical expenses were reasonable and necessary.

Notice and the opportunity to be heard are the “hallmarks of due process.” Anonymous v. Anonymous, 353 So.2d 515, 519 (Ala.1977). Here, the appellant does not contend that his notice was insufficient, despite his apparent absence at the earlier hearing, and he was present in court with his counsel at the hearing on November 7. The appellant failed to offer any expert testimony or other evidence at that hearing to dispute the victim’s claims. Defense counsel asked the court if a doctor could testify, and the court responded that, if counsel paid a doctor, the court would be glad to call the doctor to testify. The appellant did not seek a continuance to secure the expert testimony he purportedly desired. The juvenile court’s rulings were terse and abrupt. However, based [111]*111on the record, we do not believe they denied the appellant an opportunity to be heard.

The appellant also has failed to establish error on the other stated grounds. With regard to the issue of permanence, the victim’s mother stated that the victim had lost all of his teeth. The appellant admitted, with regard to causation, that he had inflicted the injury to the victim. As to the victim’s present medical expenses, the appellant failed to include in the record on appeal copies of those expenses. It is the duty of the appellant to file a correct record. Davis v. State, 549 So.2d 577 (Ala.Crim.App.1989). The appellate court will not presume error from a silent record. Robinson v. State, 444 So.2d 884 (Ala.1983).

With regard to the issue of future medical expenses, the court specifically limited the restitution to the amount of the victim’s current bills. As to whether those expenses were reasonable and necessary, the appellant offered no contradictory evidence for the juvenile court to consider. He also failed, as previously noted, to include the challenged expenses in the record on appeal. The amount of restitution is a matter that must be left almost totally to the trial judge’s discretion, and the judge’s decision exercising that discretion should not be overturned except in cases of clear and flagrant abuse. Moore v. State, 706 So.2d 265 (Ala.Crim.App.1997). The appellant has not shown that the trial court abused its discretion. Therefore, he is not entitled to relief.

II.

The appellant also contends that the trial court failed to conduct a restitution hearing that complied with D.J.W. v. State, 70S So.2d 521 (Ala.Crim.App.1996). He argues that the record is devoid of evidence to address the factors outlined in that cage.

The State argues that the appellant does not specify the factors the trial court failed to address. The State also argues that the appellant did not present any evidence regarding the burden that the restitution placed on him. • In addition, the State argues that the appellant presented no evidence that he was unable to make the ordered restitution payments.

Restitution in juvenile cases is governed' by Rule 26.11(a), Ala.R.Crim.P. The amount must be based not only on the amount that compensates the victim, but also on the juvenile’s ability to reasonably meet that obligation, because the goal of restitution is primarily rehabilitation. It is an abuse of discretion for the juvenile court to fail to take into account the juvenile’s financial resources and obligations, the burden that payment will impose, the juvenile’s age, background, and all other relevant factors, as well as the rehabilitative effect of the restitution order. D.J.W. v. State, supra; § 12-15-1.1, Ala.Code 1975; Rule 26.11(a), Ala.R.Crim.P.

Because the juvenile court failed to consider the required factors in determining the appellant’s restitution, we must remand this cause for proper consideration of those factors by the juvenile court. A return should be filed with this court within 49 days after the release of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

On Return to Remand

This cause was remanded for the juvenile court to consider the factors required under D.J.W. v. State, 705 So.2d 521 (Ala.Crim.App.1996), in determining the amount of restitution that T.B. II, a [112]*112delinquent juvenile, should pay.

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Bluebook (online)
819 So. 2d 108, 2001 WL 727354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tb-v-state-alacrimapp-2001.