Summary
In State v. Holmes, 221 Neb. 629, 379 N.W.2d 765 (1986), we held that restitution ordered (return of drug buy money) pursuant to Neb. Rev. Stat. § 28-427 (Reissue 1985) was in the nature of a civil or administrative penalty, not a criminal penalty imposed as punishment for the crime.
Summary of this case from State v. DuranOpinion
No. 85-295.
Filed January 17, 1986.
1. Sentences. A sentence validly imposed takes effect from the time it is pronounced, and a subsequent sentence fixing a different term is a nullity. 2. Criminal Law: Penalties and Forfeitures: Restitution: Words and Phrases. Restitution imposed under Neb. Rev. Stat. § 28-427 (Reissue 1979) is not a criminal penalty to be imposed as punishment for the crime, but is in the nature of a civil or administrative penalty or sanction. 3. ___: ___: ___: ___. Restitution differs from forfeiture in that it is unnecessary to identify money found in the possession of the defendant as the money received by the defendant from a particular sale of drugs. 4. Criminal Law: Restitution. An order under Neb. Rev. Stat. § 28-427 (Reissue 1979) that the defendant make restitution creates a debt in favor of the State which can be satisfied from any funds belonging to the defendant. 5. Statutes. The heading, or catchline, to a statute is supplied in the compilation of the statutes and does not constitute any part of the law. 6. Criminal Law: Restitution: Sentences. An order for restitution under Neb. Rev. Stat. § 28-427 (Reissue 1979) may be made at the time of the sentencing, but there is no statutory requirement that it be made at that time, and it is not a part of the sentence.
Appeal from the District Court for Lancaster County: WILLIAM D. BLUE, Judge. Affirmed.
Hal W. Anderson of Berry, Anderson, Creager Wittstruck, for appellant.
Robert M. Spire, Attorney General, and Dale D. Brodkey, for appellee.
KRIVOSHA, C.J., BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, D.J., Retired.
The defendant, Donald Holmes, was sentenced on November 13, 1984, to imprisonment for 2 1/2 to 3 years for delivery of cocaine and ordered to pay the costs of the action.
On December 11, 1984, the defendant filed a motion for the return of $2,700 that had been seized at the time of his arrest on September 20, 1983. The motion alleged the money had been in a safe in his home and was "not in the immediate vicinity of any drugs, narcotics or any other drug paraphernalia, nor is there any evidence that said money was derived from the sale of drugs or intended to be used in the purchase or transferring of drugs or other narcotics." The motion further alleged that the money was "not needed for evidence in any case, nor [has it] been used as evidence in any case."
The motion was heard on February 12, 1985. In support of the motion the defendant introduced an affidavit stating that he owned $2,700 that had been stored in a safe in his Lincoln, Nebraska, home, which sum was not used in unlawful gambling nor in lotteries. Attached to and incorporated in the affidavit was a copy of the Nebraska State Patrol inventory of Holmes' vehicles, dwellings, or buildings, which he received on the date of his arrest. The inventory sheet indicates that $2,700 in cash was taken from a safe in the defendant's home on September 20, 1983.
The State presented no evidence other than a stipulation that $6,390 was expended by the Nebraska State Patrol in buying cocaine from Holmes on June 13 and June 20, 1982, and that none of that money had been repaid by the defendant. The county attorney then, by oral motion, requested that the trial court, pursuant to Neb. Rev. Stat. § 28-427 (Reissue 1979), order the defendant to make restitution in the amount of $6,390 to the Nebraska State Patrol for the purchase of controlled substances.
On February 14, 1985, the trial court found that the defendant's motion for return of the money should be denied. The defendant was ordered to make restitution within 10 days to the Nebraska State Patrol in the amount of $6,390, and the $2,700 held by the State Patrol was to be applied to the restitution. The defendant has appealed from that order.
The defendant contends (1) that the trial court erred in failing to order the return of the seized property pursuant to Neb. Rev. Stat. § 29-818 et seq. (Reissue 1979), and (2) that the trial court erred in sustaining the oral motion of the State for the imposition of additional sanctions upon the defendant, in that it lacked jurisdiction under 28-427 to do so at the time.
The defendant contends that since there were no pleadings or testimony at the February 12, 1985, hearing to indicate anything other than that the money belonged to him, the court should have ordered the $2,700 be returned to him. He relies upon 29-818 et seq. as authority for an order returning the money.
Section 29-818 gives the court in which the complaint was filed exclusive jurisdiction to determine the rights to seized property and the disposition of it. Section 29-820 provides in part:
Unless other disposition is specifically provided by law, when property seized or held is no longer required as evidence, it shall be disposed of on order of the court on such showing as the court may deem adequate, as follows:
. . . .
(2) Money shall be restored to the owner unless it was used in unlawful gambling or lotteries in which case it shall be forfeited and disposed of as required by Article VII, section 7, Constitution of Nebraska.
(Emphasis supplied.)
The trial court did not order the seized funds be returned to the defendant, because it found the defendant should make restitution under 28-427.
Section 28-427 provides:
Any penalty imposed for violation of this article shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law. A conviction or acquittal under federal law or the law of another state having a substantially similar law shall be a bar to prosecution in this state for the same act. Should any person be convicted for violation of this article, in addition to any penalty imposed by the court, the court may order that such person make restitution to any law enforcement agency for reasonable expenditures made in the purchase of any controlled substances from such person or his agent as part of the investigation leading to such conviction.
At the February 12, 1985, hearing it was stipulated that $6,390 was expended by the Nebraska State Patrol in buying cocaine from the defendant on June 13 and June 20, 1982. It was also stipulated that none of this money had been repaid to the State Patrol.
The defendant contends that the trial court lacked jurisdiction to order restitution because restitution must be a part of the sentence and a valid sentence had been imposed previously. The defendant argues that the restitution order amounted to a change or increase in his sentence and could not be imposed at the February 1985 hearing, because he had been validly sentenced previously.
A sentence validly imposed takes effect from the time it is pronounced, and a subsequent sentence fixing a different term is a nullity. See State v. Cousins, 208 Neb. 245, 302 N.W.2d 731 (1981). See, also, State v. Vernon, 218 Neb. 539, 356 N.W.2d 887 (1984); State v. Christiansen, 217 Neb. 740, 351 N.W.2d 67 (1984); State v. Kinney, 217 Neb. 701, 350 N.W.2d 552 (1984); State v. Sliva, 208 Neb. 647, 305 N.W.2d 10 (1981); State v. Brewer, 190 Neb. 667, 212 N.W.2d 90 (1973).
The rule against changing a validly imposed sentence applies, consistent with its double jeopardy origins, when conditions amounting to punishment are ordered upon conviction, after which additional punishment may not be imposed. Whedbee v. Powell, Comr. of Motor Vehicles, 41 N.C. App. 250, 254 S.E.2d 645 (1979). See, also, A. Campbell, Law of Sentencing 58 (1978).
The first two sentences of what is now 28-427 originated as 16 of 1971 Neb. Laws, L.B. 326.
It is clear from the language of 16 of L.B. 326 that the Legislature contemplated that civil or administrative penalties or sanctions might be imposed upon a defendant convicted of violating the Nebraska drug laws and that such penalties or sanctions were to be in addition to, and not in lieu of, penalties imposed for the offense itself.
In 1974 the third sentence of what is now 28-427 was added by 1974 Neb. Laws, L.B. 748. Its purpose was to permit the State to recover "buy money" expended in purchasing controlled substances from a defendant.
Whether a particular statutory penalty is civil or criminal in nature is a matter of statutory construction. United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). Restitution under the federal Victim and Witness Protection Act of 1982, 18 U.S.C. § 1501 et seq. (1982), has been held to be a criminal penalty. United States v. Keith, 754 F.2d 1388 (9th Cir. 1985); United States v. Florence, 741 F.2d 1066 (8th Cir. 1984).
Unlike the federal Victim and Witness Protection Act, which requires that restitution under that act be imposed at the time of and as a part of the sentencing procedure (18 U.S.C. § 3579), 28-427 is silent as to when an order for restitution can be made. The only requirements are that the defendant have been convicted of a violation of the article and that the restitution be for "reasonable expenditures made in the purchase of any controlled substances" from the defendant or his agent as part of the investigation leading to the conviction. The facts in the present case satisfy all of these requirements.
The order for restitution can be made at the time of the sentencing, but there is no statutory requirement that it be made at that time.
We think the restitution which 28-427 provides for is not a criminal penalty to be imposed as punishment for the crime, but is in the nature of "a civil or administrative penalty or sanction" which is "in addition to any penalty imposed by the court." Its purpose is to prevent the defendant from profiting by his crime and to restore the funds expended by the State in the investigation of the crime. See United States v. $2,500 in United States Currency, 689 F.2d 10 (2d Cir. 1982) (construing nonpunitive purposes of the forfeiture provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 871-886 (1976)). See, also, People v. Evans, 122 Ill. App.3d 733, 461 N.E.2d 634 (1984).
Restitution differs from forfeiture in that it is unnecessary to identify money found in the possession of the defendant as the money received by the defendant from a particular sale of drugs. An order that the defendant make restitution creates a debt in favor of the State which can be satisfied from any funds belonging to the defendant.
Other courts have recognized that "[a] penalty is in the nature of punishment for the nonperformance of an act or for the performance of an unlawful act. It involves the idea of punishment." Hoffmann v. Clark, 69 Ill.2d 402, 429, 372 N.E.2d 74, 87 (1977). See, also, Hidden Hollow Ranch v. Collins, 146 Mont. 321, 406 P.2d 365 (1965); S.C. State Hwy. Dept. v. Southern Rwy. Co., 239 S.C. 227, 122 S.E.2d 422 (1961); Julian v. Burrus, 600 S.W.2d 133 (Mo. App. 1980).
Restitution, on the other hand, is not punitive in nature. "As contrasted to a fine, restitution is considered rehabilitative rather than punitive; contrasted to forfeiture, it is regarded as indemnifying the victim rather than dispossessing the offender." A. Campbell, Law of Sentencing 10 at 49 (1978). See, also, State v. Fader, 358 N.W.2d 42 (Minn. 1984).
The defendant argues that the caption to 28-427 supports his argument that restitution amounts to a penalty or punishment. The caption to 28-427 reads "Additional penalties; exception." The heading, or catchline, is supplied in the compilation of the statutes and does not constitute any part of the law. See, Neb. Rev. Stat. § 49-802(8) (Reissue 1984); Cosentino v. City of Omaha, 186 Neb. 407, 183 N.W.2d 475 (1971).
We conclude that restitution imposed under 28-427 is not a part of the sentence and that the trial court had jurisdiction to make the order of restitution on February 14, 1985, following the hearing on the oral motion of the State. The judgment of the district court is affirmed.
AFFIRMED.