State v. McDonald
State v. McDonald
Opinion of the Court
Defendant contends that the trial court erred when it failed to find as a statutory mitigating factor that the defendant made substantial or full restitution to the victim in case number 88CRS1419. See N.C.G.S. § 15A-1340.4(a)(2)(f). We disagree.
N.C.G.S. § 15A-1340.4(b) requires the sentencing judge to list in the record each matter in aggravation or mitigation which is proved by a preponderance of the evidence. State v. Michael, 311 N.C. 214, 219, 316 S.E. 2d 276, 279 (1984). The factors must be proved by evidence which is substantial, uncontradicted and
The resolution of this case depends on the meaning of N.C.G.S. § 15A-1340.4(a)(2)(f): “[t]he defendant has made substantial or full restitution to the victim.” Traditionally, for a defendant charged with larceny to be eligible for a statutory reduction of a penalty based on restitution it is required that:
(1) The thing stolen must be actually returned by the thief and not merely abandoned by him where the owner can get it. (2) The thing must be returned in the condition in which it was stolen. (3) The restitution must be voluntary. (4) The restitution must be promptly made, although a return within a reasonable time may suffice. (5) The restitution must be prompted by repentance for the deed, and not solely by fear of punishment ....
52A C.J.S. Larceny § 159.
N.C.G.S. § 15A-1340.4(a)(2)(f) allows for “substantial” or “full” restitution to be taken into account in finding the mitigating factor. Considering the factors listed above, the statute requires at least “substantial,” though not necessarily “full” compliance with the first four factors. The fifth factor is not required, rather whether restitution is prompted by repentance does not go to the existence of the mitigating factor, but to its weight. See Graham at 591, 308 S.E. 2d at 315. (Defendant’s motive in acknowledging guilt at an early stage does not go to the existence of the mitigating factor, but goes to its weight.)
In the larceny charge, 88CRS1419, the defendant initially abandoned the property, but later led police to its location so the police could return it to the victim. The property was not returned in the condition in which it was stolen. The defendant did inform the police promptly. In Graham, the defendant confessed to four break-ins and “informed the police where [some] of the stolen items
No error.
Reference
- Full Case Name
- STATE OF NORTH CAROLINA v. JAMES HERBERT McDONALD
- Cited By
- 1 case
- Status
- Published