In re M.Z.
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0019
Case Date: 05/29/1998
NO. 4-97-0019
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In the Interest of M.Z., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Livingston County
v. ) No. 95J89
M.Z., a Minor, )
Respondent-Appellant. ) Honorable
) Harold J. Frobish,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
After admitting to a petition to revoke juvenile proba-
tion, respondent, M.Z., was committed to the Illinois Department
of Corrections, Juvenile Division (DOC). He was also ordered to
pay restitution of $1,717.25 for damages caused to a motor vehi-
cle. M.Z. appeals the restitution order, contending (1) the
trial court did not have the authority to reserve the restitution
order until after he was already sentenced; (2) the charge
against M.Z. was criminal damage to property under $300 and it
was improper to order restitution above $300; and (3) the evi-
dence was insufficient to establish the damage caused by M.Z. was
$1,717.25. We affirm.
M.Z. was adjudicated a delinquent and made a ward of
the court on September 7, 1995. He was placed on two years' pro-
bation. On September 26, 1996, the State filed a petition to re-
voke probation alleging M.Z. had committed the offenses of crimi-
nal trespass to a motor vehicle in violation of section 21-2 of
the Criminal Code of 1961 (Code) (720 ILCS 5/21-2 (West 1996)),
criminal damage to property under $300 in violation of section
21-1(1)(a) of the Code (720 ILCS 5/21-1(1)(a) (West 1996)) and
driving without a valid license in violation of section 6-101 of
the Illinois Vehicle Code (625 ILCS 5/6-101 (West 1996)). On
October 24, 1996, M.Z. admitted to all three charges, was again
adjudicated a delinquent, and found in violation of probation. A
dispositional hearing was set for December 12, 1996.
Supplemental petitions to revoke probation and for
adjudication of wardship were filed on October 25 alleging M.Z.
had committed the offense of aggravated assault. On October 28 a
detention hearing was held at which time M.Z. was ordered de-
tained. On October 31 a further adjudication and dispositional
hearing was held. M.Z. stipulated to the evidence introduced at
the October 28 hearing and was again adjudicated a delinquent.
An immediate dispositional hearing was held. M.Z. was committed
to the DOC and given his appeal rights. The issue of restitution
was reserved because the amount listed in the social investiga-
tion filed that day was contested by M.Z. and did not include a
description of how the restitution figure was computed.
A hearing on restitution was held on December 12. C.J.
Fraher, the body shop manager for Driscoll Motors, testified he
examined a 1994 Oldsmobile Cutlass Cierra on February 5, 1996, to
prepare an estimate of the damage to the vehicle. He put the car
on a lift and noted the car's engine support or subframe had been
pushed back from its proper position; the car's radiator was
damaged and the right front fender had damage underneath the
bumper cover. Fraher stated the damage was consistent with the
vehicle having been driven through a ditch. He explained the
work that would be necessary to fix the damage, itemized all the
labor and parts and estimated it would cost $1,717.25 to repair.
Fraher also identified photographic exhibits of the car.
M.Z.'s mother, Ruth Rogers, testified during January
1996 she obtained a "loaner" vehicle from Driscoll Motors while
her own vehicle was being repaired. She returned the loaner to
Driscoll the following evening and did not notice any problems.
That evening someone from Driscoll telephoned her and asked if
she had driven the car into a ditch. Rogers stated she had not.
The person from Driscoll told her the front license plate and
cover were missing, the front bumper had scratches, and there was
mud underneath the front fender. A few weeks later Roger was
notified by Driscoll the damage was more extensive that original-
ly thought.
M.Z. testified he drove the loaner car his mother ob-
tained from Driscoll for about five minutes. He drove down a
road, through a ditch and a field, and then parked the car. M.Z.
stated the ditch had a gradual rather than a sharp drop and he
was driving only about 10 miles per hour. The driver's side of
the car had gone into the ditch, and M.Z. did not deliberately
drive into the ditch but slipped off the road. He noticed the
front license plate was missing after he drove the car. M.Z.
stated the car in the photographic exhibits looked like the car
he drove.
The trial court then ordered restitution in the amount
of $1,717.25 to be paid by M.Z. to Driscoll Motors. M.Z. filed a
notice of appeal on January 3, 1997.
M.Z. first contends it was error for the trial court to
reserve the issue of restitution until after his commitment to
DOC. The State argues the issue has been waived. Neither at the
time the court reserved the issue or at the time the restitution
hearing was held did M.Z. nor his counsel express any objection.
No posttrial motion was filed.
The State argues the failure to file a motion to recon-
sider a disposition waives any dispositional issue even if the
challenge is only to restitution. People v. Fontana, 251 Ill.
App. 3d 694, 704, 622 N.E.2d 893, 901 (1993). Specifically, the
failure to object to a court's inaction at the time a restitution
order is entered or in a later motion contesting the order oper-
ates as a waiver of the issue. People v. Kirkpatrick, 272 Ill.
App. 3d 67, 72-73, 650 N.E.2d 267, 271 (1995). However, the
written posttrial motion requirement is inapplicable in the de-
linquency appeals process (In re W.C., 167 Ill. 2d 307, 318-27,
657 N.E.2d 908, 914-19 (1995)) and we elect to address the mer-
its.
A restitution order will not be reversed absent a show-
ing of an abuse of discretion. People v. Rayburn, 258 Ill. App.
3d 331, 335, 630 N.E.2d 533, 537 (1994). We find no abuse of
discretion under the particular facts of this case.
Pursuant to section 5-23 of the Juvenile Court Act of
1987 (705 ILCS 405/5-23 (West 1996)), a minor who has been found
delinquent may be ordered to pay restitution under the terms and
conditions of section 5-5-6 of the Unified Code of Corrections
(Unified Code) (730 ILCS 5/5-5-6 (West 1996)). Section 5-5-6,
before it was amended effective December 31, 1996, provided:
"[T]he court shall at the sentence hearing
determine whether restitution is an appro-
priate sentence ***:
(a) At the sentence hearing, the court
shall determine *** whether the defendant should
be required to make restitution in cash, for
out-of-pocket expenses, damages, losses, or
injuries found to have been proximately
caused by the conduct of the defendant ***
(b) In fixing the amount of restitution
to be paid in cash, the court shall *** as-
sess the actual out-of-pocket expenses,
losses, damages, and injuries suffered by
the victim named in the charge ***."
730 ILCS 5/5-5-6(a), (b) (West 1994).
Generally, restitution must be ordered at the time of
the dispositional hearing after a minor has been found delin-
quent. See People v. Stinson, 200 Ill. App. 3d 223, 224, 558
N.E.2d 642, 643 (1990); People v. Jones, 176 Ill. App. 3d 460,
465-66, 531 N.E.2d 88, 92 (1988). This is the better practice.
However, in this case, it was appropriate for restitution to be
reserved because of the unique factual situation. M.Z. was found
delinquent and his probation revoked on the charges of criminal
trespass to a motor vehicle, criminal damage to property under
$300 and driving without a valid license on October 24, 1996.
The dispositional hearing on those charges was set for December
12. The next day, on October 25, a supplemental petition to
revoke probation and one for adjudication of wardship were filed
alleging M.Z. had committed aggravated assault.
On October 31 an adjudication hearing was held on the
new charge. M.Z. stipulated to the evidence and was adjudicated
a delinquent. An immediate dispositional hearing was held.
While it is not clear in the record, it appears the dispositional
hearing held on October 31 pertained to the aggravated assault
charge only. As M.Z. was not "sentenced" on the criminal damage
to property charge, it was permissible for the trial court to
reserve the restitution issue until a dispositional hearing was
conducted on the original petition to revoke. That dispositional
hearing previously had been set for December 12, and on that date
restitution was ordered.
Further, if the dispositional hearing on October 31
actually did purport to include disposition for the criminal dam-
age charge, the social investigation report filed that day in-
cluded a figure for restitution for the charge of criminal damage
to property, which was contested by M.Z.'s mother and his coun-
sel. Because the report gave only a final figure for the damages
and the person who repaired the report was not in court, the
trial court chose to reserve ruling on restitution until the per-
son who compiled the figure could present evidence on how the
contested figure was computed. In that respect, the reservation
of the restitution issue was a continuance and was not an abuse
of discretion on the part of the trial court.
M.Z.'s second contention is, because the charge against
him was for criminal damage to property under $300 only, it was
error to order restitution in an amount greater than the charge.
In general, a trial court is not empowered to set conditions of
restitution that extend to matters unrelated to the charges be-
fore the court. See People v. Chapin, 233 Ill. App. 3d 28, 34,
597 N.E.2d 1250, 1255 (1992). However, pursuant to section 5-5-6
of the Unified Code, a defendant may be ordered to make restitu-
tion for losses sustained "proximately caused by the same crimi-
nal conduct of the defendant" as that of which he was convicted.
730 ILCS 5/5-5-6(b) (West 1994); Fontana, 251 Ill. App. 3d at
706, 622 N.E.2d at 902.
In this case, M.Z. was only charged with criminal dam-
age to property under $300, a misdemeanor. 720 ILCS 5/21-1(2)
(West 1996). The State chose to charge M.Z. with a misdemeanor
rather than a felony for criminal damage that exceeded $300,
thereby limiting his juvenile record to a misdemeanor adjudica-
tion. Thus, M.Z. was treated favorably due to the State's charg-
ing discretion, but he is still responsible for all damage proxi-
mately caused by his actions. There was no error in ordering
restitution for all damages proximately caused by M.Z.'s actions.
Finally, M.Z. contends the State did not prove the
damage caused to the automobile in question was caused by him as
there was no evidence presented concerning the condition of the
vehicle when Driscoll loaned it to his mother. The determination
of the appropriate amount of restitution is left to the sound
discretion of the trial court. Rayburn, 258 Ill. App. 3d at 335,
630 N.E.2d at 537. A trial court's dispositional order is enti-
tled to great deference and will not be reversed absent an abuse
of discretion. In re S.M., 229 Ill. App. 3d 764, 768-69, 594
N.E.2d 410, 413 (1992).
The damage testified to by Fraher was consistent with
M.Z.'s own testimony he drove the car through a ditch. M.Z.
testified the vehicle in the photographic exhibits identified by
Fraher looked like the same vehicle he drove. Rogers testified
after she returned the vehicle to Driscoll she received a tele-
phone call that same evening from someone at Driscoll telling her
of the superficial damage to the bumper and the mud under the
vehicle and asking her if she had driven into a ditch. Rogers
denied having done so but M.Z. admitted in his testimony he drove
the loaned vehicle from Driscoll into a ditch.
From this testimony, there was sufficient evidence to
find the damage inflicted on Driscoll's vehicle was proximately
caused by the conduct of M.Z.
The judgment of the trial court is affirmed.
Affirmed.
GARMAN, P.J., and STEIGMANN, J., concur.
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