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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
R.I., )
) Court of Appeals No. A-5130
Appellant, ) Trial Court No. 4FA-91-214 CP
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1408 - May 12, 1995]
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Mary E. Greene,
Judge.
Appearances: J. John Franich, Assistant
Public Advocate, Fairbanks, and Brant McGee,
Public Advocate, Anchorage, for Appellant.
D. Rebecca Snow, Assistant Attorney General,
Fairbanks, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
R.I. was adjudicated a juvenile delinquent under
AS 47.10.080(a). As one of the conditions of his probation, he
was ordered to make restitution in the amount of $3,018.83.
Later, because of various violations of his probation (including
failure to make restitution), the superior court revoked R.I.'s
probation and institutionalized him. In addition, the court
entered a civil judgement against R.I. (in favor of the victims
of his crimes) for the amount of the unpaid restitution.
R.I. appeals this last aspect of the superior court's
dispositional order. He contends that the superior court, by
entering the civil judgement against him, in effect increased the
severity of his sentence and thus violated the double jeopardy
clauses of the federal and state constitutions. We asked the
parties to brief a related issue: whether the superior court had
the authority to convert the unpaid restitution into a civil
judgement. After consideration of the supplemental briefing, we
now hold that the superior court lacked authority to convert the
restitution order into a civil judgement.
The superior court's decision to issue a civil
judgement against R.I. was apparently prompted by the fact that
the court's jurisdiction over R.I. was about to end.1 The court
wished to ensure that R.I. eventually paid the restitution, even
if payment did not occur until after R.I.'s release from juvenile
supervision. However, in attempting to achieve this goal, the
court acted beyond its legal powers.
In both criminal cases and juvenile delinquency cases,
the legislature has authorized the superior court to order a
defendant to pay restitution. In criminal prosecutions, a
sentencing court can order a convicted defendant to pay
restitution either as an independent component of the defendant's
sentence, see AS 12.55.045(a), or as a condition of the
defendant's probation, see AS 12.55.100(a)(2). And in juvenile
cases, AS 47.10.080(a)(4) authorizes the superior court to order
restitution "in lieu of or in addition to" the dispositions
authorized by AS 47.10.080(a)(1)-(a)(3).
These statutes, however, do not authorize a sentencing
court to issue a civil judgement in favor of a crime victim for
the amount of damage or loss inflicted by an adult or juvenile de-
fendant.2 More specifically, no provision of AS 47.10 gives the
superior court the authority to enter civil judgement in a
juvenile case in favor of the intended recipient of restitution.
This lack of statutory authority determines the outcome of R.I.'s
appeal.
In the realm of criminal law, the Alaska Supreme Court
has repeatedly held that legislation, not inherent judicial
power, is the source of a court's sentencing authority. The
legislature sets the maximum, minimum, and presumptive terms of
imprisonment for crimes. See Nell v. State, 642 P.2d 1361, 1368
(Alaska App. 1982), (citing several Alaska cases "which have
explicitly recognized the authority of the legislature in the
area of fixing criminal sentences"). The legislature decrees
whether a defendant's sentence may be suspended in whole or in
part. Pete v. State, 379 P.2d 625, 626 (Alaska 1963) (a court
has no inherent power to suspend a sentence of imprisonment and
place a defendant on probation; such authority must be granted by
the legislature). The legislature determines what length of
probation may be imposed. Gonzales v. State, 608 P.2d 23, 25-26
(Alaska 1980); Jackson v. State, 541 P.2d 23, 25 (Alaska 1975)
(when a defendant's sentence of imprisonment is suspended and the
defendant is placed on probation, the defendant's total period of
probation may not exceed the 5-year period specified in AS 12.
55.090(c)); Tiedeman v. State, 576 P.2d 114, 116 n.11 (Alaska
1978) (because a different statute (AS 12.55.085(a)) governs
probation when a defendant receives a suspended imposition of
sentence (SIS), the 5-year limitation does not apply; rather, SIS
probation is limited to the same number of years as the maximum
sentence of imprisonment for the crime). And, while a court has
wide discretion in setting the conditions of a defendant's
probation, a court must have legislative authorization before
imposing conditions that fundamentally alter a defendant's status
as a "probationer" (that is, someone who is released from custody
upon his or her promise to abide by certain conditions).
Whittlesey v. State, 626 P.2d 1066, 1067 (Alaska 1980); Boyne v.
State, 586 P.2d 1250, 1251 (Alaska 1978) (absent explicit
legislative authori-zation, a court may not impose imprisonment
as a condition of probation). See Brown v. State, 559 P.2d 107,
110 (Alaska 1977) (because AS 12.55.100(a)(1) authorizes a court
to impose a fine as a condition of probation, a sentencing court
can order a defendant to pay a fine as a condition of probation
even when the underlying crime is punishable by imprisonment
only).
In juvenile cases, the supreme court has followed the
same rule: the superior court's authority to impose particular
types of disposition in a juvenile case is granted by and
governed by legislation. In re E.M.D., 490 P.2d 658 (Alaska
1971). In E.M.D., the superior court found a minor to be a
"child in need of supervision" under former AS 47.10.290(7)
(a status that is now termed "child in need of aid" under AS 47.
10.010(a)(2)). Based on this finding, the superior court ordered
E.M.D. to be institutionalized "in a correctional or detention
facility ... until released therefrom upon a showing ... that the
minor has completed a program of rehabilitation and has been
amenable thereto". E.M.D., 490 P.2d at 659.
The minor appealed, contending that the superior court
had exceeded its authority when it ordered her to be
institutionalized. E.M.D. argued that the legislature had
authorized institutionalization only for delinquent minors, not
for children in need of supervision. The supreme court agreed:
Alaska's pertinent statutory provisions and
procedural rules distinguish between
categories of children ... . Of controlling
significance here is that each class or
category mandates distinct differences
regarding the permissible content of any
dispositional order the trial court can
enter.
Study of our children's laws leads to
the conclusion that the legislature has
authorized institutionalization only where
the child is found to be a delinquent minor.
... [T]he only instance under our children's
laws authorizing institutionalization or
incarceration is when the child has violated
the laws of the state[.] Since the runaway
child in the case at bar was found to be a
child in need of supervision, not a
delinquent minor, no legal basis existed for
her incarceration.
E.M.D., 490 P.2d at 659-660.
Attempting to avoid this result, the State in E.M.D.
argued that the superior court was not bound by the literal terms
of AS 47.10. The State contended that, "in light of the
legislature's broad policy declaration [that] protection of
children is the paramount purpose [of the] laws pertaining to
children's courts", the superior court should be deemed to enjoy
broad power to fashion dispositions different from, or in
addition to, the ones specifically listed in AS 47.10.080. Id.
at 660. The supreme court rejected this argument:
[W]e recently held that the benevolent social
theory supposedly underlying children's court
[legislation] does not furnish justification
for dispensing with constitutional safeguards
[citing R.L.R. v. State, 487 P.2d 27, 30-31
(Alaska 1971) (a child alleged to be a delin
quent minor is entitled to a trial by jury)].
[In] the case at bar, it is equally
appropriate to note that notions of
benevolent protective policies cannot be used
to validate departures from positive law
relating to the adjudicative and dispositive
phases of children's proceedings.
E.M.D., 490 P.2d at 660.
Returning to the present case, no provision of AS 47.10
authorizes the superior court to issue a civil judgement in favor
of a crime victim as part of a juvenile disposition. The State
attempts to deal with this lack of statutory authority by
asserting that, in children's cases, the superior court enjoys
broad, inherent power to fashion dispositional orders. The State
reasons that there was no need for the legislature to specify the
superior court's power to convert a restitution order to a civil
judgement in children's cases because the superior court has
"broad dispositional discretion" to pursue any mode of enforcing
its judgement.
This is essentially the same argument that the supreme
court rejected in E.M.D.. The superior court does not have
unfettered dispositional power in children's cases; rather, the
court's authority arises from, and is limited by, statute. The
legislation defining the superior court's authority in juvenile
cases does not authorize the court to enter civil judgement in
favor of a crime victim or convert a previously-entered
restitution order into a civil judgement. Because no provision
of AS 47.10 confers this power on the superior court, we hold
that the superior court lacked the authority to convert the
restitution portion of its dispositional order into a civil
judgement against R.I..
The State contends that, if the superior court lacks
the power to convert its restitution orders to civil judgements,
then delinquent minors might evade the court's orders "simply by
waiting to get too old" for the court to take action against
them. Nevertheless, as the State's brief in E.M.D. recognized,
courts must not exceed their granted powers "even where ... the
factual circumstances cry out for a disposition beyond the
fingertips of the [sentencing] court". E.M.D., 490 P.2d at 660-
61 n.10.
The contested portion of the superior court's judgement
is REVERSED.
_______________________________
1 Under AS 47.10.100(a), the superior court's jurisdiction
over a juvenile ends when the juvenile reaches his or her
nineteenth birthday (or, with the child's consent, his or her
twentieth birthday). State v. T.M., 860 P.2d 1286, 1288 (Alaska
App. 1993).
2 We note that, in criminal prosecutions, the legislature
has authorized crime victims to pursue execution upon a
restitution order as if it were a civil judgement in their favor.
Alaska Statute 12.55.051(d) provides:
The state may enforce payment of a fine and [a]
restitution recipient may enforce payment of a
restitution order against a defendant under AS 09.35 as
if the order were a civil judgment enforceable by
execution. This subsection does not limit the
authority of the court to enforce fines and orders of
restitution to victims.
