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State v. Fontaine4/17/1998
MORSE, J.
Defendant Steve Fontaine was convicted of driving under the influence , death resulting, in violation of 23 V.S.A. Sections 1201(a)(2) and 1210(e). He appeals a probation condition requiring him to pay restitution for partial support to the victim's two minor children. He claims (1) the condition exceeds the statutory limits on restitution, (2) the evidence did not support the award, and (3) there was no proper inquiry into his ability to pay. While we agree that restitution in the form of child support awarded here was reasonable and served the ends of Justice, restitution in a criminal case is a creature of the legislature and its statutes on the subject are too narrow to permit the condition imposed. We reverse.
At sentencing, the trial court imposed two to ten years, all suspended but two years, and a $2,000 fine. In addition, a special condition of probation was imposed requiring defendant to pay restitution in the form of $12.50 per week to each of the decedent's two minor children for sixteen years, for a sum total of $20,800. The trial court arrived at this fixed sum by multiplying "$25 a week, times fifty-two weeks a year, . . . times sixteen years remaining in [the younger child's] time through graduation from high school." As the court explained, the amount "would be far less than would be the actual cost of paying for raising a child, but would be a substantial amount over time, and we can know exactly what it's going to because it's clearly a matter of multiplication." The court concluded, "[it's] not a perfect sum, but it's a liquidated sum." This appeal followed.
We address defendant's first claim and hold that the trial court did not have the statutory authority to require defendant, as a condition of probation, to contribute to the support of the deceased victim's dependents. The statutes involved here are 28 V.S.A. Section 252(b)(6) and 13 V.S.A. Section 7043. We have held that "28 V.S.A. Section 252(b)(6), which generally allows restitution as a condition of probation, is limited by 13 V.S.A. Section 7043, which specifically explains when restitution must be considered and what restitution may include." State v. Jarvis, 146 Vt. 636, 638, 509 A.2d 1005, 1006 (1986). Under 28 V.S.A. Section 252(b)(6), the sentencing court may require that the offender " ake restitution or reparation to the victim of his conduct . . . for the damage or injury which was sustained." And under 13 V.S.A. Section 7043(a), " estitution shall be considered in every case in which a victim of a crime has suffered a material loss or has incurred medical expenses." The award can include a payment "to compensate for damages to the victim's property or person." Id. Section 7043(b)(2).
A trial court has broad discretion in determining conditions of probation and may require a probationer to satisfy any conditions reasonably related to a defendant's rehabilitation. See State v. Lockwood, 160 Vt. 547, 560, 632 A.2d 655, 663 (1993). However, this discretion is not unbridled. We observed in Jarvis, 146 Vt. at 640, 509 A.2d at 1007, that restitution in a criminal action is not a substitute for a civil lawsuit, and is generally construed more narrowly. Accordingly, we construed the words "material loss," "medical expenses," and "damages to the victim's property or person" under our legislative scheme to include "only liquidated amounts which are easily ascertained and measured." Id. at 638, 509 A.2d at 1006.
On appeal, the parties disagree as to the nature of the award. Relying on our holding in Jarvis, 146 Vt. at 638-39, 509 A.2d at 1006, defendant characterizes the award here as an unliquidated amount. In Jarvis we distinguished between "lost employment income" a
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