State v. McIntyre

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235 S.E.2d 920 (1977)

STATE of North Carolina v. Carolyn S. McINTYRE.

No. 7729SC233.

Court of Appeals of North Carolina.

July 6, 1977.

*922 Atty. Gen. Rufus L. Edmisten by Associate Atty. Patricia B. Hodulik, Raleigh, for the State.

Bennett, Kelly & Cagle, P. A., by E. Glenn Kelly, Asheville, for petitioner, John R. Hudson, Jr.

*923 PARKER, Judge.

The initial question presented in whether the Clerk of Superior Court had jurisdiction to enter the order directing disbursement of the restitution funds which the defendant in this criminal proceeding had paid into court as result of a plea bargain. We hold that the Clerk did not have such jurisdiction.

Art. IV, § 12(3), of the Constitution of North Carolina contains the following:

"The Clerks of the Superior Court shall have such jurisdiction and powers as the General Assembly shall prescribe by general law uniformly applicable in every county of the State."

G.S. 1-209 lists certain judgments which the Clerks of Superior Court are authorized to enter, but an order of the type here in question is not among those listed. Other statutes confer judicial power upon the Clerk as ex officio judge of probate and in respect of special proceedings and the administration of guardianships and trusts. We have found no statute which confers upon the Clerks of Superior Court any jurisdiction or power to order the manner in which restitution funds paid into court by a defendant in a criminal proceeding shall be disbursed. Absent such a statute, the Clerk of Superior Court had no jurisdiction to enter such an order in this case.

In fairness to the Clerk of Superior Court of Transylvania County, it should be noted that the record before us reveals that the "Order for Disbursement" dated 21 October 1976 which she signed in this case was dictated by Judge Griffin to the court reporter and was signed by the Clerk at Judge Griffin's request. In addition, Judge Griffin gave the Clerk's order his written "approval and consent." Judge Griffin, however, had no power to grant to the Clerk any jurisdiction or power which the General Assembly had not granted.

If the "Order for Disbursement" which was entered in this case be considered, under the peculiar circumstances of this case, as having actually been entered by the judge rather than by the Clerk, we still find no jurisdiction in the court for the entry of such an order in this criminal proceeding. It is true that, subject to the constitutional prohibition contained in Art. I, § 28, of our State Constitution against imprisonment for debt, except in cases of fraud, payment of restitution by a criminal defendant to the victims of his crime may be a valid condition for suspension of sentence. See State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970); State v. Green, 29 N.C.App. 574, 225 S.E.2d 170 (1976). We hold that such a condition may also be a valid condition for acceptance of a plea bargain. Our Supreme Court has noted, however, in connection with payment of restitution as a condition for suspension of sentence, that "[w]here restitution is ordered it must be to a specific aggrieved party and this party must be named in the judgment." Shore v. Edmisten, 290 N.C. 628, 638, 227 S.E.2d 553, 561 (1976). This command would seem equally appropriate when restitution is ordered as result of a plea bargain. Failure to heed it when the judgment imposing sentence was entered in this case has resulted in the anomaly displayed in the present proceedings.

In the present criminal case, final judgment sentencing the defendant was entered. That judgment ordered payment of restitution into the court but failed to specify to whom or in what amounts the funds should ultimately be disbursed. It is apparent that the funds are insufficient to make whole all of the victims of the defendant's criminal activities and that some equitable pro ration among the victims will be required. It is also apparent that there is some dispute among the several claimants as to the validity of some of the claims. Moreover, the amounts which the several claimants lost as result of defendant's criminal activities have never yet been judicially determined by a court having jurisdiction in *924 proceedings in which all claimants were accorded due process notice and opportunity to be heard. The ultimate responsibility of John R. Hudson, Jr., to other claimants for any loss of funds entrusted to his care has not been determined. Under these circumstances, a civil action among the various claimants is the proper method by which distribution of the restitution fund can be adjudicated. See State v. Earley, 24 N.C. App. 387, 210 S.E.2d 541 (1975).

For lack of jurisdiction, the order entered in the criminal action on 21 October 1976 which directed distribution of the restitution funds must be vacated and the present proceeding dismissed.

Order vacated.

Proceeding dismissed.

MARTIN and ARNOLD, JJ., concur.