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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA07-103


Filed: 2 October 2007

IN RE:                                Robeson County
                                    No. 05 J 172

    Appeal by juvenile from order entered 4 October 2006 by Judge W. Jeffrey Moore in Robeson County District Court. Heard in the Court of Appeals 17 September 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Jennifer M. Jones, for the State.

    Sofie W. Hosford, for defendant-appellant.

    CALABRIA, Judge.

     B.K.C. (“the juvenile”) seeks review of his adjudication of felonious breaking and entering and felonious larceny. We affirm in part and vacate and remand in part.
    The State presented evidence at the adjudication and disposition hearing showing that on 20 May 2006, the juvenile served as a lookout while his companions broke into a residence and took a DVD player, walkie talkie, cash, and guns. They also poured gasoline on the carpet. The juvenile's court counselor, Lance Britt (“Britt”), testified that at the time of the hearing, the juvenile was fourteen years old and living at home with his mother. The juvenile's father is deceased. Britt noted that the juvenile was making his third appearance in Juvenile Court. Britt asked thecourt to impose probation for a period up to twelve months and confinement on an intermittent basis in an approved detention facility for a period up to fourteen days. Britt also asked the court to impose restitution in the amount of $2,770.00. On cross examination, Britt acknowledged that the petition alleged the amount of restitution owed was $2,100.00 and that the victim impact statement alleged that restitution in the amount of $3,407.00 was owed.
    The juvenile did not present any evidence.
    In announcing the sentence, the court imposed probation and a 14-day suspended sentence, and ordered the juvenile to pay restitution in the amount of $2,670, jointly and severally with two other juveniles and an adult defendant. The court further declared
        You must pay restitution. Restitution will consist of the rifles that were _ gun that were removed, the DVD player, the damage to the home which includes the carpet and the window, not the cash that was taken. This liability will be joint and severed [sic] with other co-defendants.

The juvenile's counsel then asked the court to set an amount. The court responded: “I have no idea what the amount is but whatever it is minus the cash. That would be the amount.” The prosecutor then interjected, “That would be two thousand six hundred and seventy dollars ($2,670).” The court signed the disposition order in which it ordered the juvenile to pay restitution, jointly and severally with the other perpetrators, in the amount of $2,670.00 to the homeowner within twelve months. The juvenile's counsel gave notice of appeal in open court “as to the restitution amount.”    The juvenile contends that the portion of the disposition order requiring the payment of restitution should be vacated because the court failed to hear evidence or consider whether this condition was fair, reasonable, or in the juvenile's best interest.
    As a condition of probation, the trial court may require that a delinquent juvenile pay restitution, full or partial, to any person who has suffered loss or damage as a result of the offense committed. N.C. Gen. Stat. § 7B-2506 (22) (2005). Although this Court has stated it does “endorse the discriminate and prudent use of restitution in juvenile cases[,]” we have cautioned that “compensation of victims should never become the only or paramount concern in the administration of juvenile justice.” In re Register, 84 N.C. App. 336, 339, 352 S.E.2d 889, 891 (1987). We require that when a court does order the payment of restitution, the order “must be supported by the record, which demonstrates that the condition is fair and reasonable, related to the needs of the child, and calculated to promote the best interest of the juvenile in conformity with the avowed policy of the State in its relation with juveniles.” In re Schrimpsher, 143 N.C. App. 461, 464, 546 S.E.2d 407, 410 (2001). The juvenile court must consider and make findings as to whether restitution is in the juvenile's best interest and whether the juvenile has or could reasonably acquire the means to pay restitution. In re Heil, 145 N.C. App. 24, 32, 550 S.E.2d 815, 821 (2001).
    Absent from the record in the case at bar are such findings. The State concedes that the trial court erred and asks this Courtto remand the matter to the trial court for findings as to the juvenile's ability to pay restitution, as to whether payment of restitution is in the juvenile's best interests, and as to how the court arrived at the amount of restitution. We concur with the State and we remand to the trial court for these findings.
    The disposition order is affirmed except with respect to the portion ordering the payment of restitution. The portion ordering the payment of restitution is vacated and the matter remanded for further findings consistent with this opinion.
    Affirmed in part; vacated and remanded in part.
    Chief Judge MARTIN and Judge JACKSON concur.
    Report per Rule 30(e).

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