
May 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 proba­tion, 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 vehi­cle.  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 evi­dence 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' pro­ba­tion.  On Sep­tem­ber 26, 1996, the State filed a peti­tion to re­voke proba­tion alleging M.Z. had committed the offenses of crimi­nal 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 de­tained.  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 in­ves­tiga­tion 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 original­ly thought.

M.Z. testified he drove the loaner car his mother ob­tained 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 re­con­sid­er 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 oper­ates 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 de­linquency 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 mer­its.

A restitution order will not be re­versed ab­sent a show­ing 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 delin­quent.  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 dam­age charge, the so­cial in­ves­ti­ga­tion re­port filed that day in­clud­ed a fig­ure for resti­tu­tion for the charge of crimi­nal damage to prop­erty, which was 
contested
 by M.Z.'s moth­er and his coun­sel.  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 per­son 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 be­fore 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 res­titu­tion for losses sustained "proximately caused by the same crimi­nal 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 dam­age 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 adjudica­tion.  Thus, M.Z. was treated favorably due to the State's charg­ing dis­cre­tion, but he is still re­spon­si­ble for all damage prox­i­mate­ly 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 enti­tled 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 tele­phone 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.

