Appeal from the Circuit Court of Vermilion County; the Hon.
James K. Robinson, Judge, presiding.
PRESIDING JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 8, 1986.
This is defendant's second appeal contesting the validity of a restitution order entered by the circuit court of Vermilion County. We reverse the restitution order finding that it was an invalid order because of its indefinite nature and failure to follow statutory provisions concerning restitution.
After a jury trial, defendant was convicted of two counts of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(6)), and the trial court sentenced him to three years' imprisonment. The court ordered defendant to make full restitution to the victims for their actual losses. The factual underpinnings of the initial conviction and sentence are adequately set forth in People v. White (1985), 135 Ill. App.3d 563, 482 N.E.2d 134, and will be repeated here only as necessary for an understanding of our disposition.
Two sheriff's deputies were injured during an altercation which occurred while the deputies were attempting to arrest defendant, who was breaking into the residence of his former spouse. Ronald DeBarba testified that defendant hit him and cut his nose. Edgar Shaw testified that defendant grabbed his left ring finger, twisted it, and broke his knuckle in three places. Shaw further testified that his knuckle required surgery, daily physical therapy until October 1984, and at the time of trial, therapy twice weekly. The presentence report noted that Shaw stated his total loss was $99 for a ring which had to be cut from his finger at the hospital.
"The judgment order of this Court will include an order on full restitution to all victims within the statutory requirement that restitution will be paid in an amount not to exceed the actual loss or damage to the victims."
In his first appeal, defendant argued that the restitution order should be vacated because the record established that he lacked the future ability to pay restitution. He also argued that the cause should be remanded for a determination of his ability to pay and so that the court could set the amount and conditions of restitution. The State conceded the cause had to be remanded for a determination of the amount of restitution and manner of payment. This court vacated the restitution order and remanded, directing the trial court to determine the amount of restitution to be paid and the conditions of payment. People v. White (1985), 135 Ill. App.3d 563, 567, 482 N.E.2d 134, 136-37.
On October 25, 1985, pursuant to the remand, the trial court held a restitution hearing. The parties stipulated to the admission of medical bills through April 11, 1985, which had been paid either by the Vermilion County sheriff's department or its workers' compensation carrier and documents representing lost wages and the ring.
"My initial order is still my order in this case. The defendant is required as a sentence to pay an amount not to exceed the actual loss or damage to the victim. Since the deputy is still under medical care, I am unable at this time to determine the actual loss or damage to the victim. I am able to determine the loss or damage to the victim and to the insurance companies at this point in time.
I will enter a judgment against the defendant and order by way of sentence that he repay the sum of $12,884.25, reserving for further hearing the right to determine any additional expenses incurred as a result of this same loss or injury within a period of time that the defendant is incarcerated. There obviously has to be a cut-off point at some time, and I would assume that the additional restitution order in this case will be minimal. The defendant will be noticed in and given an opportunity to be heard.
I enter sentence in the amount of $12,884.25 with payment to be made in an amount not to exceed 50% of all prison-earned income while the defendant is incarcerated and in reasonable periodic payments after release." (Emphasis added.)
• 1 Initially, defendant argues that the State waived the right to seek any restitution beyond that set out in the presentence report by not initially seeking restitution. The argument has little merit. Waive is defined as: "To abandon, throw away, renounce, repudiate, or surrender a claim, a privilege, a right, or the opportunity to take advantage of some defect, irregularity, or wrong. To give up right or claim voluntarily." (Black's Law Dictionary 1417 (5th ed. 1979).) Section 5-5-3 of the Unified Code of Corrections (Code) provides that restitution is an authorized increment to a prison sentence for a felony or misdemeanor conviction. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 1005-5-3.) Section 5-5-6 of the Code provides that the sentencing judge shall determine whether restitution is an appropriate sentence. If restitution is appropriate, the provisions of section 5-5-6 set forth the method which the sentencing judge must use to determine the amount and conditions of ...