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In re M.Z.

May 29, 1998


The opinion of the court was delivered by: Justice Knecht

Appeal from Circuit Court of Livingston County

No. 95J89

Honorable Harold J. Frobish, Judge Presiding.

After admitting to a petition to revoke juvenile probation, respondent, M.Z., was committed to the Illinois Department of Corrections, Juvenile Division (DOC). He was also ordered to pay restitution of $1,717.25 for damages caused to a motor vehicle. M.Z. appeals the restitution order, contending (1) the trial court did not have the authority to reserve the restitution order until after he was already sentenced; (2) the charge against M.Z. was criminal damage to property under $300 and it was improper to order restitution above $300; and (3) the evidence was insufficient to establish the damage caused by M.Z. was $1,717.25. We affirm.

M.Z. was adjudicated a delinquent and made a ward of the court on September 7, 1995. He was placed on two years' probation. On September 26, 1996, the State filed a petition to revoke probation alleging M.Z. had committed the offenses of criminal trespass to a motor vehicle in violation of section 21-2 of the Criminal Code of 1961 (Code) (720 ILCS 5/21-2 (West 1996)), criminal damage to property under $300 in violation of section 21-1(1)(a) of the Code (720 ILCS 5/21-1(1)(a) (West 1996)) and driving without a valid license in violation of section 6-101 of the Illinois Vehicle Code (625 ILCS 5/6-101 (West 1996)). On October 24, 1996, M.Z. admitted to all three charges, was again adjudicated a delinquent, and found in violation of probation. A Dispositional hearing was set for December 12, 1996.

Supplemental petitions to revoke probation and for adjudication of wardship were filed on October 25 alleging M.Z. had committed the offense of aggravated assault. On October 28 a detention hearing was held at which time M.Z. was ordered detained. On October 31 a further adjudication and Dispositional hearing was held. M.Z. stipulated to the evidence introduced at the October 28 hearing and was again adjudicated a delinquent. An immediate Dispositional hearing was held. M.Z. was committed to the DOC and given his appeal rights. The issue of restitution was reserved because the amount listed in the social investigation filed that day was contested by M.Z. and did not include a description of how the restitution figure was computed.

A hearing on restitution was held on December 12. C.J. Fraher, the body shop manager for Driscoll Motors, testified he examined a 1994 Oldsmobile Cutlass Cierra on February 5, 1996, to prepare an estimate of the damage to the vehicle. He put the car on a lift and noted the car's engine support or subframe had been pushed back from its proper position; the car's radiator was damaged and the right front fender had damage underneath the bumper cover. Fraher stated the damage was consistent with the vehicle having been driven through a ditch. He explained the work that would be necessary to fix the damage, itemized all the labor and parts and estimated it would cost $1,717.25 to repair. Fraher also identified photographic exhibits of the car.

M.Z.'s mother, Ruth Rogers, testified during January 1996 she obtained a "loaner" vehicle from Driscoll Motors while her own vehicle was being repaired. She returned the loaner to Driscoll the following evening and did not notice any problems. That evening someone from Driscoll telephoned her and asked if she had driven the car into a ditch. Rogers stated she had not. The person from Driscoll told her the front license plate and cover were missing, the front bumper had scratches, and there was mud underneath the front fender. A few weeks later Roger was notified by Driscoll the damage was more extensive that originally thought.

M.Z. testified he drove the loaner car his mother obtained from Driscoll for about five minutes. He drove down a road, through a ditch and a field, and then parked the car. M.Z. stated the ditch had a gradual rather than a sharp drop and he was driving only about 10 miles per hour. The driver's side of the car had gone into the ditch, and M.Z. did not deliberately drive into the ditch but slipped off the road. He noticed the front license plate was missing after he drove the car. M.Z. stated the car in the photographic exhibits looked like the car he drove.

The trial court then ordered restitution in the amount of $1,717.25 to be paid by M.Z. to Driscoll Motors. M.Z. filed a notice of appeal on January 3, 1997.

M.Z. first contends it was error for the trial court to reserve the issue of restitution until after his commitment to DOC. The State argues the issue has been waived. Neither at the time the court reserved the issue or at the time the restitution hearing was held did M.Z. nor his counsel express any objection. No posttrial motion was filed.

The State argues the failure to file a motion to reconsider a disposition waives any Dispositional issue even if the challenge is only to restitution. People v. Fontana, 251 Ill. App. 3d 694, 704, 622 N.E.2d 893, 901 (1993). Specifically, the failure to object to a court's inaction at the time a restitution order is entered or in a later motion contesting the order operates as a waiver of the issue. People v. Kirkpatrick, 272 Ill. App. 3d 67, 72-73, 650 N.E.2d 267, 271 (1995). However, the written posttrial motion requirement is inapplicable in the delinquency appeals process (In re W.C., 167 Ill. 2d 307, 318-27, 657 N.E.2d 908, 914-19 (1995)) and we elect to address the merits.

A restitution order will not be reversed absent a showing of an abuse of discretion. People v. Rayburn, 258 Ill. App. 3d 331, 335, 630 N.E.2d 533, 537 (1994). We find no abuse of discretion under the particular facts of this case.

Pursuant to section 5-23 of the Juvenile Court Act of 1987 (705 ILCS 405/5-23 (West 1996)), a minor who has been found delinquent may be ordered to pay restitution under the terms and conditions of section 5-5-6 of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-6 (West 1996)). ...

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