was over when the circuit clerk was figuring the cost in the case the circuit clerk imposed a restitution order against mr gregory let me ask you a question if the court had ordered restitution on the same amount and then the state's attorney you said or filed a motion saying your honor we would like that amount reduce your judgment so that it can be enforce against the defendant who later civil proceeding is it possible to reduce a fine a fee or arrest to sion or limited restitution is it possible for that to be reduced to a judgment so that it could be collected in a civil crissy i don't think there would have to be any sort of action taken by the state to do that the restitution statute itself provides that for the for restitution to be collected in the same provides for that provides for the collection of restitution through means similar to what's a citation it's just it's part of the restitution statute which is seven thirty five slash five that's five to enter civil judgments it does all the time but in terms of a statute specifically providing for this i couldn't find one the state didn't cite to one when it requested the civil judgment so i statute that would apply to this sort of situation where it's it's like restitution it's medical bills and certainly if that sort of i order were entered as as it was in this case that seems to be something that either mr gregory or begin surance company who wasn't even present could certainly appeal by filing the proper motions under civil procedure in the trial court and then proceeding then here to appeal any sort of judgment just could have instead order simple for us to order restitution the way that it's always order and directed payments be made to the probation officer if that's how it's done in that county and later there could be the civil proceedings that you've reference or that are of a whatever they are that are available i don't think it was a necessarily just a simple mistake like your i don't need to characterize it that way i mean everything was done wrong to accomplish what the state hoped to accomplish and which if we were result oriented which we are not money ought to have been following from the defendant to the stand that he could ever pay back toward restitution or civil judgment or whatever yeah i can't say for sure that that's that's what the courts concern was because the here was very clear that he was putting in place the civil treatment as opposed to a regular restitution order and that's why they didn't have the normal hearings that you would have in a rescue and case about the defendant's ability to pay to determine whether there was going to be some sort of payment schedule as opposed to just slapping this this order on him another potential issue that could have come up i don't know whether this was the state's concern or not but  but one thing that comes into play when something's ordered this restitution as opposed to a civil judgment is when restitution goes on a it's just like any fine or work pass that goes unpa the secretary of state can yank the defendant's driver's license which inherently makes it more difficult for the defendant to find a job we're going to keep the job we're paid only to do if you're in prison for nine and a half years  yes and then once he gets out on m s r to comply with all of the terms of m s r and then pay that restitution not having driver's license can get in the way of that so maybe the state was trying to get around that home maybe the state have been burned by that  or maybe the already been burned by that work and decided to go the civil judgment route so the secretary of state wouldn't license mr gregory pay as he could as he you know when he got out and was finally able to get a job and start working r thing was actually trying to help mr mading out for his ghost maybe they were maybe they were seeking you know this is maybe they could call it exactly some of these dollars it's a possibility i mean that's that's the only real difference i've been able to find going to situation like mr gregory's where you know it's not a concern over whether we're going to have a bunch of probation violations like you would if he'd gotten probation and restitution and been ordered then it would be continuing litigation in the probation context here we don't have that so that's the only difference i can come up with outside of a question for you let's assume that you that we sent your argument and you win so where does that leave the civil judgment was put in place well right now the civil judgment there's at least an oral order from the court up i've been able to find that that oral judgment has never been put down on paper and i think that you know the judge  if any party which are seeking to enforce that judgment and certainly ask that it be put down on paper is that i think it didn't get done when the circular ordered restitution rather than doing what the trial criminal case only the criminal case on appeal so i don't think we could ask the court to vacate the civil judgment through this appeal mr gregory would have to appeal the civil judgment itself but the state  i think so i know they're asking for the court to remain and and require the trial court to order restitution i don't think they specifically said they can't the civil judgment they're brief but i assume that's part of what they're for the imposition of restitution oh back yet so the guest the state is requesting the civil judgment be vacated i don't know that that that that the civil judgment is even properly before this  not on the notice of appeal so i don't know that the court has the ability to even address that question at this time or not still lawyer but i'm not even certain that judgments final since it hasn't been put down on paper entered  o it's interesting what the state's requesting now is for restitution to be essentially for the trial court to be forced to enter this restitution order when it's the state later contend on appeal that that course of action was and they're just precisely what the state's doing here i think we also run into some serious issues with passage very where now the state is seeking an order forcing this case to go back to the trial court to increase the defendant's sentence the trial judge shows to order their own restitution in this case they want to increase that restitution sentenced to twenty eight thousand eight hundred seventy nine dollars and sixty six cents and of course they're arguing it's not an increase because you're breaking the civil judgment in the same amount it's obscene anyway but it's not really because a civil judgment is not part of a sentence when when we look at the extremely clear that restitution was not what he was going for we referring to i mean in this case we have the missional imposition of the civil order but then you have the motion to reconsider where it's definitely clarified that you know i didn't do restitution and i did the civil judgment and the state i think was pretty clear initially were asking for a civil judgment and they referred to the fact that the hospital will have to try to collect it after he gets out and of referencing i think some of the things that just started was talking about in terms of some savings exactly and you know i mean ultimately the whole purpose behind the rest to can statute is to to attempt to make these victims all without victims having to suffer through the whole you know a civil suit hiring a lawyer and going through all that rigamarole but here the state asked for this the  of the solution and now to ask the un to that and then to ask this court to force the trial court to increase mr gregory sentence this simply doesn't comply with with the jurisdictional already or with in the constitution or with the castleberry or the invited error doctrine so for these reasons we're simply asking this court vacate the restitution order that was entered by the circuit clerk without jurisdiction or not really if there is the state reverences a docket entry and it's brief and there is a sort of typed up minutes in the record of docket entries it's not something that is signed by the judge and even if it were a written handwritten documentary by the judge the judge is oral or always trumps the judge's written order is the state recognizes and every so the only one to the trial court at sentencing should go for now it's meant that a civil judgment would be american the amount of twenty eight thousand eight hundred seventy nine dollars and sixty six cents to be paid by them censure health care and family services despite the oral pronouncement there is a docket entry that indicates the same amount of money was ordered to be paid as restitution it seems quite reasonable that the clerk entered the order for arrest to sion dates on the trial court civil judgment we did just state ever asked for restitution we did not i'm focusing at the moment though on whether what the clerk did was void the clerk had the right to docket sheets are part of the common law record and they are presumed to be correct but clerk's office would not have had transcripts reported proceedings unless they had been asked to be prepared and filed with the box office therefore what the clerk did in recording this docket entry as restitution was follow what it believed had been the order of the court based on a docket entry that was properly part of the common law record it does not show that this le unlike many situations where they do acted without a already on its own and without jurisdiction on the facts that we have here this record is not void because of an action by the clerk the clerk of the direction best that it new from any docket entry that is part of the common law record so it isn't boyd and it doesn't matter if that entry is incorrect inter meeting in determining whether the clerk acted as entered by the court it still remains that there is the same consistency between the oral pronouncement and the docket entry sheet and i acknowledge as i already have it was the state to ask for the civil judgment and therefore we certainly a role in what has happened here but that said it is also the role of the state to seek justice and to see that justice is impartial and is correct and you have an opportunity here to impose correctly what should i know i know all that it's it's because of these principles that i felt i had an obligation to bring the issue of mandatory restitution to your attention i saw the issue when i was going through the grief i felt certain this would be perceptive and see it as well and i felt it best to address it upfront despite the fact that it was the state who asked for the simple judgment i set forth in my brief the plain language from the restitution statute which provides in all convictions for offenses in violation of the criminal code in which the person received any injury to his or her person as a result of the criminal act of the defendant the court shall order restitution as provided in the section subsection b of the restitution statute provides the court shall assess the actual out of pocket expenses losses damages and injuries suffered by the victim named in the charge any other victim who similarly suffered losses or injury and the insurance carriers indemnified the name victim or other victims contrary to dependents argument this plain lack language establishes that restitution itself as well as restitution to insurance companies is mandatory and not discretionary because of that i am asking that restitution which again is what was in the docket entry being imposed here and i do not believe castleberry or ce is the fact that the restitution statute provides that restitution is excellent lean against the defendant and in favor of the victim and i believe justice attorney you asked that subsection and that provides that a judgment lien expires under arrest of two ssion in the same way as it doesn't a civil proceeding so you can rebuy be there for seven years as a as i recall i don't have perfect memory the court can extend the period of time after setting restitution when you have to set the manner in the time the court has the ability to extend the period of restitution if necessary express the truth and at the end of that period is still not covered there is this interplay between restitution in the civil judgment that the victim can go then through a civil judgment to retain the rest of what was ordered to but under the defendant is asking for there would still be a civil judgment in favor of the hospital so it's not as if that money is not not as if they have any inability to try to collect what they're old so i'm not really understanding why your nuance is so important the point that i'm trying to make which is a court may or may not accept is that there is a center play between restitution and civil judgments and whether it's ordered this restitution or civil judgment either way it is a judgment lien that is filed in favor of the victim so what we're asking you to do is to correct the nature of that civil of that judgment lane to be a restitution as required by the statute rather than a civil judgment  nasser and justice connect you were on that panel it was this court that recognized the reason for restitution being favored is because there is this additional obstacle and inconvenience with civil justice proceedings and it would already be where those instances where it did not was there was a difference between the documents or pronouncement i'm sorry in the question you were saying that you know we take judicial notice of documentaries and that we can consider not have the authority to increase a criminal sentence that under six zero or the state doesn't right to appeal and that you cannot attack a trial court judgement with the intent lessening the defendant's right even if there is statutory authority mandating the actions for it but that's none of that is what we're asking for here it's not what the facts are in this case we are not asking you to rule in any way that you are not authorized to do so the basis of castleberry was the fact that court did not have the authority to enter a fifteen year sentence and hanson because the trial court had not ever first applied it again in that case there had been two charges they applied fifteen year hanson to one but not to the it is not increasing defendant sentence to continue with that twenty nine thousand dollars assessment what we are asking you to do is to modify it again in the nature of correcting it fro arguing that circular was seeking out an opportunity to start imposing restitution of people willy nilly that's not what was going on here yes the circuit court probably did make a mistake even an understandable mistake but at the end of the day the judgment we all agree that judgment entered by the judge the trial judge was for a civil judgment that's the only judgment that was injured by a trial judge yet we have committed down on paper this restitution asking that the case theory mandated so that the trial judge can order restitution and so now we would have to jump through the hoops that come along with ensuring restitution versus the civil judgment in terms of the  rights to contest it to challenge it into proof or evidence and then all the considerations that the judge has to make that he specifically talks about not having to deal with because the subjects are absolutely all of those sorts of things  and additionally all of the issues dealing with will a payment plan be put into place and then how are we going to collect this through the payment plan without mr gregory even being on restitution so all of those steps would have to be done well now the state says the castleberry doesn't apply and it focuses strongly on how this was mandatory the cork but what's interesting is it relies wholly on the use of the word shall for its argument that this was mandatory interesting lee as we point out in the cannot appeal that that's precisely what they're doing here is they're trying to appeal a zero dollar restitution order in stead of a and put in place a nearly twenty nine thousand dollar restitution wor there is a difference between the restitution order and the civil judgment order now whether it's in the driver's license context whether it's in the context of exactly who's responsible for collecting it the prosecutor or whether the insurance company has to get a little skin in the game there are differences and for these reasons it's very important that castleberry be applied to the state not be allowed to do across the field and try to increase mr gregory s in this morning as well we take our response will be very seriously but sometimes humor is a way to get through the day particularly given the seriousness of the matter is that we consider we consider this matter seriously both