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COURT OF APPEALS DECISION DATED AND RELEASED April 16, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3232
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
In the Interest of
Arrmond B.,
a Child Under the Age
of 18 Years:
State of Wisconsin,
Petitioner-Respondent,
v.
Arrmond B.,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Milwaukee County:
ROBERT J. MIECH, Reserve Judge, and MEL FLANAGAN, Judge.[1] Affirmed.
SCHUDSON, J.[2] Arrmond B. appeals from the juvenile court's
dispositional order and the order denying post-disposition relief. He argues that the dispositional order
violates his protection against double jeopardy because it requires, as a condition
of probation, that he pay restitution previously required by a separate
dispositional order. This court
affirms.
The facts are
undisputed. On September 6, 1994,
Arrmond B. was placed on probation for one year and ordered to pay restitution
of $650, for operating a vehicle without the owner's consent, party to a
crime. On July 31, 1995, Arrmond B. was
placed on intensive probation for possession of a firearm by a felon, with
conditions including that he pay the previously-ordered restitution. When the trial court first stated that it
would require payment of the restitution by extending the previous
dispositional order, defense counsel objected because no petition to extend the
dispositional order had been filed. See
§ 48.365(1m), Stats. The trial court then responded, “Even if
that be true, I'm ordering him for this particular situation to pay the 650, so
even without the extension, I'm ordering it from this day for one year.”
At the hearing on
Arrmond B.'s challenge to the probation condition, the trial court commented:
[I]t
was certainly within the discretion of the court and in the best interest of
the child ... that he make the prior victim whole and that ... is not only ...
simply for the purpose of punishment, it was for the purpose of assisting this
juvenile to do ... what would be in his best interest, which is to contribute
to his community, to make the victims whole, and I believe that there is a
therapeutic purpose behind restitution in the prior order and that that
therapeutic purpose continues to be in his best interest....
Arrmond B. argues that
the restitution order must be vacated because the trial court violated the requirements for extending a
dispositional order under § 48.365, Stats. There is no need to address this argument,
however, because, as both parties acknowledge, the trial court did not extend
the 1994 dispositional order.
Arrmond B. also argues
that, under In Interest of R. L. C., 114 Wis.2d 223, 338 N.W.2d
506 (Ct. App. 1983), the July 31, 1995 dispositional order requiring $650
restitution punished him a second time for the same offense and, therefore,
violated his protection against double jeopardy. This court disagrees.
Double jeopardy
protections apply to juveniles in delinquency cases. Breed v. Jones, 421 U.S. 519 (1975). The double jeopardy protection of the Fifth
Amendment to the United States Constitution, as applied to the states through
the Due Process clause of the Fourteenth Amendment and Article I,
Section 8 of the Wisconsin Constitution, provides protection against, inter
alia, multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969);
State v. Sauceda, 168 Wis.2d 486, 492, 485 N.W.2d 1, 3
(1992). Whether double jeopardy rights
were violated presents a question of law subject to de novo review. Id.
Arrmond B. contends that
R. L. C. controls. In R.
L. C., however, the trial court ordered the juvenile to pay
previously-ordered $10 restitution from a probation order that had
expired. R. L. C. at 224,
338 N.W.2d at 507. This court
concluded: “Requiring R. L. C. to now
make restitution under a lapsed order amounts to being punished twice for the
same offense.” Id. at
226, 338 N.W.2d at 508. By contrast,
Arrmond B.'s September 6, 1994 one year dispositional order of probation had
not lapsed when, on July 31, 1995, the trial court entered its dispositional
order. Therefore, R. L. C.
does not control.
As this court recently
reiterated:
Disposition
of a child's delinquency adjudication lies in the sound discretion of the
court. A presumption of reasonableness
supports a children's court disposition.
A court has broad discretion in imposing conditions of probation, and is
limited only by the exercise of reasonableness and propriety....
Courts
liberally construe the Children's Code to accomplish its objectives. Section 48.01(2) provides:
(2) This chapter shall be liberally construed to effect the objectives
contained in this section. The best
interest of the child shall always be of paramount consideration...
These objectives include, inter alia: “to provide for the care, protection and
wholesome physical and mental development” of the child ....
The Children's Code does not explicitly or
implicitly require a child's disposition to be related to the violation that
resulted in the delinquency.
In
Interest of James P., 180 Wis.2d 677, 682-683, 510 N.W.2d
730, 732 (Ct. App. 1993) (citations and parenthetical omitted). Thus, this court must consider whether the
trial court's condition of restitution was within “the exercise of reasonableness
and propriety.” Id. at
683, 510 N.W.2d at 732.
Section 48.34(2), Stats., provides that among the
potential dispositional alternatives for a juvenile is probation supervision
“under conditions prescribed by the judge including reasonable rules for the
child's conduct ... designed for the physical, mental and moral well-being and
behavior of the child.” In this case,
the trial court reasonably concluded that Arrmond B.'s best interests would be
served by fulfilling his responsibility, both moral and legal, to pay
restitution to his victim.
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.