Notice: This opinion is subject to formal
correction before publication in the Pacific
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THE COURT OF APPEALS OF THE STATE OF ALASKA
CYNTHIA KELLY, )
) Court of Appeals No. A-4260
Appellant, ) Trial Court No. 4FA-S87-148CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1265 - December 4, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Geoffry B. Wildridge, Assistant
Public Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant. Karla
Taylor-Welch, Assistant District Attorney, Harry
L. Davis, District Attorney, Fairbanks, and
Charles E. Cole, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Cynthia D. Kelly was convicted of criminal mischief in
the second degree. AS 11.46.482(a)(4). Superior Court Judge
Mary E. Greene originally sentenced Kelly to serve a sentence of
two years with all but 100 days suspended. Judge Greene placed
Kelly on probation for a period of four years following her
release from confinement. As a special condition of probation,
Judge Greene ordered Kelly to pay restitution in the amount of
$1,597.80 to P.W., and $327.00 to Blackie's Bar.
While Kelly was serving her probation, Kelly's
probation officer filed a petition to revoke her probation.
Kelly admitted the allegations in the petition. Judge Greene
found that there were grounds to modify the original judgment and
order of probation, and ordered Kelly to serve all the unserved
time remaining on her original sentence. Judge Greene further
ordered "that all conditions contained in the original judgment
and order filed are hereby continued unless they are expressly
contrary to the modification herein."
Following Kelly's release from confinement on her
probation revocation, the superior court attempted to enforce the
restitution order. Kelly contended that since the court's
restitution order was imposed as a condition of probation and she
was no longer on probation, the court had no jurisdiction to
order the payment of restitution. After the parties had briefed
this issue, the court concluded "that where, as here, the
defendant's obligations are ordered to continue at [the] time of
revocation, the court may continue to enforce the restitution
order as an independent obligation of the sentence rather than as
a probation condition."
Under Alaska law, it is permissible for
a sentencing court to require payment of
restitution either directly, as part of the
sentence imposed, or indirectly, as a
condition of probation in cases involving
suspended execution or suspended imposition
of sentence. See AS 12.55.045 and AS
12.55.100(a)(2).
Lominac v. Municipality of Anchorage, 658 P.2d 792, 794 (Alaska
App. 1983). Alaska Statute 12.55.045(a) authorizes the court to
"order a defendant convicted of an offense to make restitution.
. . [.]" Alaska Statute 12.55.100(a) provides: "While on
probation and among the conditions of probation, the defendant
may be required . . . (2) to make restitution. . . [.]"
Therefore, under AS 12.55.045, Judge Greene had authority to
order Kelly to pay restitution as an independent provision of
Kelly's sentence at the time she originally imposed sentence, in
addition to making restitution a condition of Kelly's probation.
However, Judge Greene did not do this. She ordered Kelly to pay
restitution only as a special condition of probation under AS
12.55.100.
When a court sentences a defendant to serve a
probationary period, the court must suspend a portion of the
sentence or else the probationary term is meaningless. Manderson
v. State, 655 P.2d 1320, 1324 (Alaska App. 1983). The court
suspends a certain portion of the sentence which is then
available to the court to enforce the conditions of probation.
This procedure puts a defendant on notice that if she violates
the conditions of probation, she faces at a maximum the penalty
which the court has suspended. In the instant case, Kelly
violated her probation and the court imposed all of the time it
suspended. By doing this the court imposed the maximum sentence
which it could impose for a violation of probation. This
terminated Kelly's probation. Id. Revocation of Kelly's
probation in its entirety necessarily extinguished all duties
Kelly had that were conditioned exclusively on her probationary
status. Because Judge Greene had not imposed restitution as an
independent portion of the sentence under AS 12.55.045, she could
not terminate Kelly's probation and still order her to pay
restitution without violating the constitutional protection
against double jeopardy which mandates that "once a sentence has
been meaningfully imposed, it may not, at a later time, be
increased." Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971).
See also Shagloak v. State, 582 P.2d 1034, 1037 (Alaska 1978).
If Judge Greene wished to order Kelly to pay restitution
independent of her conditions of probation, this had to be done
at the time she originally imposed sentence. We accordingly
reverse Judge Greene's order which required Kelly to pay
restitution.1
REVERSED.
_______________________________
1. We see no reason why a court can not order
restitution both as a condition of probation and as an
independent provision of the sentence as long as the court does
this at the original sentencing hearing.
