{
  "id": 8521639,
  "name": "STATE OF NORTH CAROLINA v. ROBIN STACY SMITH",
  "name_abbreviation": "State v. Smith",
  "decision_date": "1990-06-19",
  "docket_number": "No. 8914SC1091",
  "first_page": "184",
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  "last_updated": "2023-07-14T22:38:52.620321+00:00",
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  "casebody": {
    "judges": [
      "Judges Parker and Duncan concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ROBIN STACY SMITH"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nDefendant advances two arguments challenging the trial court\u2019s imposition as a condition of probation that defendant make restitution in the amount of $4,500.00 to the decedent\u2019s mother. Defendant first contends that the trial court erred by failing to give effect to the two-year statute of limitations pertaining to wrongful death actions in its application of the wrongful death act in the resentenc-ing of defendant. Defendant also contends that the order of restitution violated her rights to equal protection under the fourteenth amendment to the United States Constitution and Article I \u00a7 19 of the North Carolina Constitution. We determine defendant\u2019s arguments to be without merit, and therefore we affirm the order entered below.\nThe authority of the trial court to impose restitution as a condition of probation is set forth in G.S. \u00a7 15A-1343(d). The provisions of that statute which were in effect at the time of defendant\u2019s conviction defined restitution, in pertinent part, as \u201ccompensation for damage or loss as could ordinarily be recovered by an aggrieved party in a civil action.\u201d In our opinion filed in the prior appeal of this case, we determined that the trial court properly referred to the wrongful death statute at G.S. \u00a7 28A-18-2 to compute the amount of restitution, but erred in its application of that statute.\nDefendant now contends that the language of G.S. \u00a7 15A-1343(d) and our opinion in the prior appeal of this case require, not just a showing of damages sufficient to support an award of compensation under the wrongful death act, but proceedings that are timely brought under G.S. \u00a7 1-53(4), the two-year statute of limitations applicable to the wrongful death act. Defendant insists that because the resentencing hearing in this case was held over two years after the victim\u2019s death, the trial court could not impose a restitutionary condition of parole predicated on a wrongful death measure of damages, and the trial court\u2019s refusal to apply the two-year statute of limitations in these resentencing proceedings, coupled with the failure of the victim\u2019s survivors to timely bring a civil wrongful death action, abrogates her vested right not to be sued or legally obligated to pay damages for the wrongful death of the victim. We disagree.\nDefendant\u2019s argument plainly rests upon the premise that a monetary amount, determined to be appropriate restitution and imposed as a condition of probation in accordance with the provisions of G.S. \u00a7 15A-1343, is the legal equivalent of an award of damages in a civil judgment pursuant to a determination of civil liability. This is simply not the case. Restitution, imposed as a condition of probation, is not a legal obligation equivalent to a civil judgment, but rather an option which may be voluntarily exercised by the defendant for the purpose of avoiding the serving of an active sentence. Shew v. Southern Fire & Casualty Co., 307 N.C. 438, 298 S.E.2d 380 (1983). Such an imposition of restitution \u201cdoes not affect, and is not affected by, the victim\u2019s right to institute a civil action against the defendant based on the same conductf.]\u201d Id. (Citations omitted and emphasis added.) \u201cCivil liability need not be established as a prerequisite to the requirement of restitution as a probation condition.\u201d Id. (Citations omitted.)\nG.S. \u00a7 15A-1343(d) clearly details the criteria which the trial court must apply to arrive at an appropriate amount of restitution. For example, the basis of the restitutionary amount must be \u201cthe damage or loss caused by the defendant arising out of the offense or offenses committed by the defendant\u201d; the trial court \u201cshall take into consideration the resources of the defendant\u201d; the restitu-tionary amount \u201cmust be limited to that supported by the record\u201d; when the damage or loss caused by a defendant\u2019s offense or offenses appears to be greater than that which the defendant is able to pay, \u201cthe court may order partial restitution.\u201d Additionally, G.S. \u00a7 15A-1343(d) further provides that \u201c[a]n order providing for restitution . . . shall in no way abridge the right of any aggrieved party to bring a civil action against the defendant for money damages arising out of the offense or offenses committed by the defendant.\u201d\nBy defining restitution as \u201ccompensation for damage or loss as could ordinarily be recovered by an aggrieved party in a civil action,\u201d the Legislature plainly did not intend that G.S. \u00a7 15A-1343(d) import wholesale each and every condition precedent to recovery in a civil action as bearing on the trial court\u2019s requiring appropriate restitution as a condition of probation. Such a requirement would eviscerate the explicit purpose of the statute that restitution, imposed as a condition of probation, be an ancillary, rehabilitative alternative to the serving of an active sentence.\nWe cannot believe that the Legislature intended this result when it enacted G.S. \u00a7 15A-1343(d). Instead, we are persuaded that by tying the amount which may be imposed as restitution to such compensation as could ordinarily be recovered in a civil action, the General Assembly meant only that the trial court must refer to the measure of recoverable damages applying in the relevant civil action \u2014such as the measure of damages in a wrongful death action \u2014 for the limited purpose of computing an appropriate restitutionary amount to be imposed as a condition of probation under G.S. \u00a7 15A-1343(d). This was implicitly recognized by this Court in our prior opinion in this case. See State v. Smith, 90 N.C. App. at 167-69, 368 S.E.2d at 38-39. We therefore hold that, in the context of sentencing proceedings under G.S. \u00a7 15A-1343(d), the two-year statute of limitations at G.S. \u00a7 1-53(4) pertaining to actions instituted under the wrongful death act is not applicable. Consequently, we conclude that the trial court did not err in refusing to apply that statute of limitations to preclude the imposition of restitution as a condition of probation in this case.\nWe next address defendant\u2019s contention that the order of restitution violated her equal protection rights under both the United States and North Carolina Constitutions. As we noted above, the order of restitution in this case was entered pursuant to G.S. \u00a7 15A-1343(d). This Court has previously held, albeit in a somewhat different factual context, that the language of G.S. \u00a7 15A-1343(d) passed constitutional muster under both the fourteenth amendment to the United States Constitution \u00e1nd Article I \u00a7 19 of the North Carolina Constitution. State v. Stanley, 79 N.C. App. 379, 339 S.E.2d 668 (1986). The fundamental reasoning in Stanley applies with equal force to the facts of this case. We therefore reject defendant\u2019s argument.\nFor the reasons stated, the trial court\u2019s order imposing restitution as a condition of defendant\u2019s probation must be and is\nAffirmed.\nJudges Parker and Duncan concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.",
      "Berman & Shangler, by Dean A. Shangler, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROBIN STACY SMITH\nNo. 8914SC1091\n(Filed 19 June 1990)\n1. Criminal Law \u00a7 1502 (NCI4th)\u2014 restitution \u2014 condition of probation \u2014 limitations of civil remedy inapplicable in criminal prosecution\nBy tying the amount of restitution which may be imposed as a condition of probation to such compensation as could ordinarily be recovered in a civil action, the General Assembly meant only that the trial court must refer to the measure of recoverable damages applying in the relevant civil action \u2014 in this case the measure of damages in a wrongful death action \u2014 for the limited purpose of computing an appropriate restitutionary amount to be imposed as a condition of probation under N.C.G.S. \u00a7 15A-1343(d), and the statute of limitations of the civil remedy is not applicable.\nAm Jur 2d, Criminal Law \u00a7\u00a7 572, 574, 575.\n2. Criminal Law \u00a7 1502 (NCI4th)\u2014 restitution as condition of probation \u2014 constitutional rights not violated\nThe requirement that a defendant pay restitution as a condition of probation does not violate a defendant\u2019s equal protection rights under the North Carolina and U. S. Constitutions. N.C.G.S. \u00a7 15A-1343(d).\nAm Jur 2d, Criminal Law \u00a7\u00a7 572, 574, 575.\nAPPEAL by defendant from order entered 19 May 1989 in DURHAM County Superior Court by Judge Anthony Brannon. Heard in the Court of Appeals 30 May 1990.\nDefendant was charged with misdemeanor death by vehicle in violation of G.S. \u00a7 20-141.4(a2) arising out of the April 1985 collision of an automobile operated by defendant with a motorcycle operated by the decedent. Defendant was convicted in the district court. She appealed to the superior court. The jury found defendant guilty as charged, and the trial court sentenced her to a term of two years\u2019 imprisonment, suspended, with five years\u2019 supervised probation. As a condition of her probation, defendant was required to pay restitution in the amount of $500,000.00 to the decedent\u2019s parents. Defendant appealed to this Court. By opinion reported at 90 N.C. App. 161, 368 S.E.2d 33 (1988), affd, 323 N.C. 703, 374 S.E.2d 866, cert, denied, \u2014 U.S. ---, 109 S.Ct. 2453 (1989), we found no error in the trial, but vacated that portion of the judgment requiring defendant to pay restitution in the amount of $500,000.00 as a condition of probation on grounds, inter alia, that it was not supported by the evidence, and remanded the case to the trial court to determine an appropriate amount of restitution. Pursuant to the resentencing hearing, Judge Brannon entered his order requiring defendant, as a condition of probation, to make restitution in the amount of $4,500.00 to the decedent\u2019s mother, contingent upon defendant\u2019s completion of her G.E.D. degree, her further completion of a nursing program at Durham Technical Institute or similar institution, and her entry upon gainful employment. From this order defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.\nBerman & Shangler, by Dean A. Shangler, for defendant-appellant."
  },
  "file_name": "0184-01",
  "first_page_order": 214,
  "last_page_order": 218
}
