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STATE v. LEMIEUX12/27/1991
rovide the court with a basis from which to infer that the victim had compensable losses beyond his recovery from collateral sources, whether in the amount of $10,000 or any other sum. That information in some reliable form was essential to support an order of restitution.
Moreover, the material presented to the court at the sentencing hearing fell short of showing the "financial ability of the offender to pay restitution," a consideration required by the restitution statute. 17-A M.R.S.A. § 1325(1)(C). The statute goes on to provide that: "Restitution shall not be authorized . . . hen the amount and method of payment of monetary restitution or the performance of service restitution will create an excessive financial hardship on the offender. . . ." Id. § 1325(2)(D). Along with other relevant factors, the statute specifically directs the court to consider " he offender's income and potential earning capacity" and " he
If the requirement that a restitution order reflect a defendant's ability to pay is to have any substance, the State should not seek, nor should a sentencing court impose, restitution upon the mere speculation that the offender will be able to comply with a restitution order at some time in the future. Rather, a restitution order, even one to be complied with in the future "to the satisfaction of the probation officer," as this one, must reflect consideration of an offender's present financial circumstances and his realistic earning potential. See State v. Murphy, 431 A.2d 58, 59 (Me. 1981). In requesting a restitution order against Lemeiux the State made no showing that he had the means with which to pay restitution as a condition of probation or that he was likely to earn the money with which to do so while in prison or thereafter. He had had income of $11,248 in 1988 and $12,435 in 1987, but by the time of the sentencing he had no assets. His deteriorated health prevented him from working. At sentencing, the prosecutor conceded that it was unlikely that Lemieux could ever pay restitution but nonetheless requested it for "symbolic" reasons. Symbolism, however, in the absence of any realistic prospect that the defendant will ever have the ability to pay, cannot justify ordering restitution. A symbolic restitution order that has no chance of ever being paid serves to delude both the victim and the public, but in fact accomplishes nothing.
Rather than modifying the sentence to strike the inadequately supported restitution order, we are required by P.L. 1991, ch. 525 § 4 (eff. June 30, 1991) (enacting 15 M.R.S.A. § 2156(1-A), to "remand the case to the court that imposed the sentence for . . . further proceedings that could have been conducted prior to the imposition of the sentence under review and for resentencing on the basis of such further proceedings . . . ."
The entry is:
Sentence for aggravated operation of a motor vehicle under the influence affirmed. Sentence for aggravated assault vacated and remanded for proceedings consistent with the opinion herein.
All concurring.
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