HARRIS v. STATE

FLETCHER, Justice.

We granted the writ of certiorari to determine whether the trial court had authority to increase the amount of restitution that the defendant had to pay after he began serving his sentence. The Court of Appeals held that the increase in restitution was not an impermissible increase or enhancement of the defendant's punishment. Harris v. State, 200 Ga. App. 841, 844 ( 410 S.E.2d 123) (1991). We find that restitution ordered as part of a criminal sentence is punishment and reverse.

Kenneth DeWayne Harris pleaded guilty to a theft by taking and was sentenced to four years, with 60 days in prison and the remainder on probation. As a term of probation, Harris had to pay restitution in an amount to be determined at a later hearing. On August 2, 1990, Harris began serving his 60-day confinement period. On August 28, 1990, the restitution hearing was scheduled, but the victim failed to appear due to a miscommunication with the district attorney's office. The state and Harris stipulated to the amount of the victim's loss based on the police report and victim impact statement. The court ordered Harris to pay the victim $600 in restitution for personal property taken from the car that she had rented.

On September 28, 1990, the victim moved to modify the restitution order after the rental car company sued her for damages to the automobile. The state argued in favor of modification and later presented testimony from a representative of the rental car company on the amount of damages. On November 9, 1990, the trial court found that it had the right to modify the terms of probation and ordered Harris to pay an additional $2,296.30 in restitution to the rental car company. Harris appealed, and the Court of Appeals affirmed.

1. In upholding the restitution statute as constitutional, we have referred to restitution as "a penalty to be determined by the court in a criminal case." See Cannon v. State, 246 Ga. 754 ( 272 S.E.2d 709) (1980). The punitive nature of restitution is illustrated by the consequences when a defendant with the ability to pay fails to comply with a restitution order which is a condition of probation. In that event, the sentencing judge may revoke probation and order imprisonment as an appropriate penalty for the offense. See Bearden v. Georgia, 461 U.S. 660, 668 ( 103 S.C. 2064, 76 L.Ed.2d 221) (1983); OCGA §§ 17-14-13 (c); 17-10-1 (a). Thus, as the dissenting judges below concluded, restitution "is inextricably linked to the punitive aspects of the offender's sentence." See Harris, 200 Ga. App. at 849 (Birdsong, J., dissenting).

Moreover, restitution is not synonymous with civil damages. Morrison v. State, 181 Ga. App. 440, 441 ( 352 S.E.2d 622) (1987); see OCGA § 17-14-11. The amount of the victim's damages is only one factor for a court to consider in determining the amount of restitution. The sentencing court must also consider the offender's present financial condition and future earning capacity, as well as the goal of rehabilitation to the offender. See OCGA § 17-14-10.

We reject the state's argument that restitution is a civil remedy for the victim, as the purpose of restitution is not solely to restore the crime victim to the financial status enjoyed before the crime was committed. Although OCGA § 17-14-1 states restitution is a primary concern of the criminal justice system, the state has other concerns of equal importance, including punishing and rehabilitating persons convicted of crimes and deterring others from criminal behavior. See Bearden, 461 U.S. at 671; OCGA §§ 17-14-5; 17-14-10.

Viewed from the perspective of punishing a defendant, restitution is recognized as an effective rehabilitative penalty because it forces defendants to confront concretely — and take responsibility for — the harm they have inflicted, and it appears to offer a greater potential for deterrence.

People v. Hall-Wilson, 69 N.Y.2d 154 ( 505 N.E.2d 584, 585, 513 N.Y.S.2d 73, 74) (1987). Accordingly, we hold that restitution is punishment when ordered as part of a criminal sentence. See Shelton v. State, 161 Ga. App. 524, 525 ( 289 S.E.2d 768) (1982).

2. We have held that the sentencing court may not increase a sentence once the defendant begins serving it without violating the prohibition against double jeopardy in both the Georgia and Federal constitutions. See Hudson v. State, 248 Ga. 397, 398 ( 283 S.E.2d 271) (1981); England v. Newton, 238 Ga. 534, 536 ( 233 S.E.2d 787) (1977); Inman v. State, 124 Ga. App. 190, 192 ( 183 S.E.2d 413) (1971). Since restitution is punishment when ordered as part of a criminal sentence, the trial court cannot increase the amount of restitution after the defendant begins serving a sentence absent the defendant's consent. See State v. Bailey, 701 S.W.2d 632, 633-634 (Tenn.Cr.App. 1985). Because Harris had begun serving his sentence when the trial court increased the restitution and he had not clearly assented to this reconsideration of the restitution amount, the trial court lacked authority to order an increase in Harris' punishment.

This ruling does not prevent a trial court from deferring the initial decision on the amount of restitution until a later hearing, as occurred in this case.

Judgment reversed. Clarke, C. J., Weltner, P. J., Bell, Hunt and Benham, JJ., concur.