State v. Lambert , 40 N.C. App. 418 ( 1979 )

252 S.E.2d 855 (1979)

STATE of North Carolina
v.
Jeffrey Lynn LAMBERT.

No. 7820SC947.

Court of Appeals of North Carolina.

March 20, 1979.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Gen. Kaye R. Webb, Raleigh, for the State.

Seawell, Pollock, Fullenwider, Robbins & May, by P. Wayne Robbins, Carthage, for defendant appellant.

VAUGHN, Judge.

Defendant brings forward only one assignment of error. He contends that the trial court erred in attaching the recommendation for restitution or reparation as a condition of work release or parole. G.S. 148-33.2(c) requires a judge, upon sentencing, to consider whether restitution or reparation should be imposed as a condition of attaining work release. He must indicate his decision on the order committing defendant to custody. G.S. 148-57.1(c) governs restitution or reparation as a condition of parole and is almost identical to the provisions of the G.S. 148-33.2(c).

Defendant first contends that these two statutes are confusing because they refer to G.S. 15-199(10) which has been repealed. G.S. 15-199(10) provided for restitution or reparation as a condition of probation. Defendant has not received probation, therefore, this reference to that statute does not affect him. We further note, however, that both G.S. 148-33.2(c) and G.S. 148-57.1(c) have been amended to change the reference from G.S. 15-199(10) to G.S. 15A-1343(d), the new provision governing restitution or reparation as a condition of probation. Any confusion, therefore, has been eliminated.

Defendant's main argument asserts that G.S. 148-33.2(c) and G.S. 148-57.1(c) are unconstitutional because the restitution or reparation requirement discriminates against the indigent defendant. In passing on the constitutionality of this statute, we presume that the statute is constitutional unless the contrary clearly appears. State v. Anderson, 275 N.C. 168, 166 S.E.2d 49 (1969). G.S. 148-33.2(c) and G.S. 148-57.1(c) provide a framework within which provision for restitution or reparation as a condition of work release and parole can be made. The decision to recommend restitution or reparation is discretionary, and the trial court is not required to impose such a condition. G.S. 148-33.2(c) and 148-57.1(c). The Secretary of the Department of Correction and the Parole Commission are not required to follow the trial court's recommendation for restitution or reparation. State v. Killian, 37 N.C.App. 234, 245 S.E.2d 812 (1978); G.S. 148-33.2(b) and 148-57.1(b). Defendant's financial status at the time he is eligible for work release or parole could be a reason to disregard the trial court's recommendation. Since the decision to impose restitution or reparation is discretionary with the trial court, the Secretary and the Parole Commission, and since indigency could be considered in making that decision, the statute is not unconstitutional as a denial of equal protection.

We note, in passing, that restitution to a party injured by criminal activity as a condition of probation has been authorized in North Carolina by judicial decisions and statutes. State v. Simmington, 235 N.C. 612, 70 S.E.2d 842 (1952); State v. Gallamore, 6 N.C.App. 608, 170 S.E.2d 573 (1969); G.S. 15A-1343(d). Restitution may also be required as a condition of probation under federal law. 18 U.S.C. § 3651 (1969); United States v. Taylor, 305 F.2d 183 (1962). Since this condition may be imposed for probation, it follows that it may be imposed for work release and parole. We also note that G.S. 148-33.1(f), governing work release privileges, provides that wages earned by a prisoner can be used to make restitution or reparation to an aggrieved party for damages caused by the criminal activity. Defendant's appeal fails to disclose prejudicial error.

No error.

HEDRICK and CLARK, JJ., concur.