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North Carolina v. Smith6/19/1990
Defendant advances two arguments challenging the trial court's imposition as a condition of probation that defendant make restitution
in the amount of $4,500.00 to the decedent's 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 resentencing 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 § 19 of the North Carolina Constitution. We determine defendant's arguments to be without merit, and therefore we affirm the order entered below.
The authority of the trial court to impose restitution as a condition of probation is set forth in G.S. § 15A-1343(d). The provisions of that statute which were in effect at the time of defendant's conviction defined restitution, in pertinent part, as "compensation for damage or loss as could ordinarily be recovered by an aggrieved party in a civil action." 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. § 28A-18-2 to compute the amount of restitution, but erred in its application of that statute.
Defendant now contends that the language of G.S. § 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. § 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's death, the trial court could not impose a restitutionary condition of parole predicated on a wrongful death measure of damages, and the trial court's refusal to apply the two-year statute of limitations in these resentencing proceedings, coupled with the failure of the victim's 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.
Defendant's 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. § 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 "does not affect, and is not affected by, the victim's right to institute a civil action against the defendant based on the same conduct[.]" Id. (Citations omitted and emphasis added.) "Civil liability need not be established as a prerequisite to the requirement of restitution as a probation condition." Id. (Citations omitted.)
G.S. § 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
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