Appeal from the Circuit Court of Stephenson County; the Hon.
Lawrence A. Smith, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 10, 1986.
The defendant, Dennis L. Boatright, was found guilty but mentally ill of arson (Ill. Rev. Stat. 1983, ch. 38, par. 20-1(a)), and attempted arson (Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)), after a bench trial in the circuit court of Stephenson County. Defendant was sentenced to concurrent terms of probation of 48 and 30 months, respectively, and, as a condition of probation, was ordered to pay restitution not to exceed $560 and to continue his treatment at the Jane Addams Mental Health Center. On appeal, defendant argues that the trial court erred in ordering him to pay restitution without first determining his ability to pay, and that the Illinois guilty-but-mentally-ill statute (Ill. Rev. Stat. 1983, ch. 38, par. 6-2(c)) violates the due process clause of the United States and Illinois constitutions.
On May 18, 1984, defendant went to the Jane Addams Mental Health Center (Center) which is located on the second floor at 222 West Exchange Street in Freeport. During the time defendant was at the Center, the Center's entrance door was charred and a first-floor restroom was damaged by fire.
Nannette Reap, an employee at the Center, testified that she saw defendant stuffing several of the Center's information pamphlets behind the entrance door and later, upon removing them, noticed that one of the pamphlets had been charred. Steve Raber, a visitor at the Center, further testified that he saw defendant holding a charred pamphlet and a butane lighter in the Center's waiting room. William Sisler, a tenant in the building with an office near the first floor restroom, testified he saw defendant standing in the area of the restroom 15 minutes before discovering the fire there.
At the sentencing hearing, the only witness called was Gary Eilders, the presentence investigator. Eilders' testimony and presentence report showed: (1) that defendant was unemployed but had the ability to work at a sheltered workshop in the future; (2) that defendant received $209 a month in Supplemental Security Insurance; (3) that defendant lived with his mother and paid no rent; (4) that defendant had no assets, no debts and had posted a $1000 cash bond; and (5) that the building's owner, Laverle Lindbeck, had submitted an unitemized bill for $560 in repairs, excluding labor, which Lindbeck said he would supply himself. The court, thereafter, ordered defendant to pay restitution not to exceed $560 based on an itemized bill to be submitted to the probation department.
• 1 Defendant's first argument on appeal is that the circuit court erred in ordering him to pay restitution without first determining his ability to pay as required by section 5-5-6(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-6(a)), which states:
"If restitution is part of the disposition, the defendant shall make restitution to the victim in accordance with the following:
(a) A pre-sentencing hearing shall be held to assess the financial capacity of the defendant to make restitution as well as to determine the amount and conditions of payment at the court's discretion."
The State contends that the evidence presented at the sentence hearing showed defendant's ability to pay and that defendant waived any right to a more detailed presentencing hearing by failing to request one.
Both parties cite and rely on several Third District cases (People v. Osborn (1983), 111 Ill. App.3d 1078; People v. Johnson (1982), 106 Ill. App.3d 171; People v. Krug (1981), 97 Ill. App.3d 938; People v. Wilson (1980), 87 Ill. App.3d 544), dealing with restitution when ordered in conjunction with a term of imprisonment under section 5-5-6(a). In the present case, however, restitution was ordered as a condition of probation. When restitution is ordered as a condition of probation, section 5-6-3(b)(9), which specifically provides for restitution to be ordered as a condition of probation, is applicable rather than the general restitution provisions of section 5-5-6(a). (People v. Chacon (1984), 125 Ill. App.3d 649.) Section 5-6-3(b)(9) states in relevant part:
"(b) The Court may in addition to other conditions require that the person:
(9) make restitution in an amount not to exceed actual out of pocket expenses or loss proximately caused by the conduct of the defendant. The court shall, in a pre-sentencing hearing, determine the amount and conditions of payment." (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-3(b)(9).)
This provision does not require the court to make any inquiry into defendant's financial ability to pay restitution. (People v. Chacon (1984), 125 Ill. App.3d 649.) Defendant's argument in the present case, therefore, is misplaced because ...