It seems that money is on the court’s mind in more ways than the budget battles going on up at the capitol. Here is a look at three recent opinions that take up money.
Anderson v. State, Minn.Ct.App., 2/8/2011, petition for discretionary review filed, 3/10/11.
Mr. Anderson pleaded guilty to one count of identity theft of eight or more victims. The trial court sentenced him to a guidelines sentence and ordered him to pay $1,000.00 in restitution to each of twenty-eight victims that were identified in the criminal complaint. Of the twenty-eight victims only seven returned restitution affidavits and only five of them requested restitution. One victim requested only $72.94. Mr. Anderson did not dispute that the twenty-eight individuals were “victims” under the identity theft statute.
The identity theft statute, Minn. Stat. 609.527, subd. 4, says that the court must order someone who is convicted of this crime to pay each victim “restitution of not less than $1,000.00.” The general restitution statute, Minn.Stat. 611A.045, subd. 3, establishes what a victim of a crime must submit to the court in order to claim restitution. Mr. Anderson argued that these two statutes should be read together.
The appellate court says, no. The identity theft statute has no requirement for proof of loss; a victim gets a thousand bucks, minimum. There are at least two nagging questions, however, that the court did not consider:
Must the state show that a victim under the identity theft statute incurred some loss. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts will generally not consider matters not argued and considered by district court). Mr. Anderson’s challenge was a procedural one – failure to comply with the general restitution statute – and not a fact challenge, and so this question was not before either the trial or appellate court.
Also, the appellate court did not consider what to do with victims who claimed losses of more than $1,000.00 and how the general restitution statute fits into such a claim.
State v. Gaiovnik, Minn.S.Ct. 3/9/2011.
Mr. Gaiovnik and an associate robbed Hollister, a clothing store in the Rosedale Mall, of an amount that everyone decided to agree was $19,200.00. No one recovered the money. A jury duly convicted Mr. Gaiovnik of simple robbery and theft. No one from Hollister bothered to send in the paperwork to request restitution. The trial court ordered him, nonetheless, to pay the difference between $19,200 and any money paid by Mr. Gaiovnik’s accomplice.
Mr. Gaiovnik objected, saying that the trial court could not order restitution under the general restitution statute, Minn.Stat. 611A.04 unless the victim submits the paperwork. The state countered by pointing to another statute, Minn.Stat. 609.10. That statute provides that upon conviction of a felony, the court “may sentence the defendant . . . to payment of court-ordered restitution in addition to either imprisonment or payment of a fine, or both.” Minn. Stat. § 609.10, subd. 1(a)(5).
Just as Mr. Anderson did, Mr. Gaiovnik said that the two statutes should be read together, that the authority conferred under 609.10 is only triggered by compliance with the requirements of 611A.04. Just as the Court of Appeals did, however, Chief Justice Gildea declines to do so. Minn.Stat. 609.10 is an independent source of authority by which to order restitution. The only limitation under this statute is the requirement that there be a factual basis for the award. In this case, everyone agreed on the amount, nineteen thousand and some change.
The court does emphasize the requirement under the general restitution statute that information about the amount of restitution being claimed must be received at least three business days before the sentencing hearing. This calls into some ill repute the local practice in some courts to leave restitution “open” for some period of time, usually ninety days. Making such an objection could lead to a continuance of the sentencing hearing so that the state could get its money ducks lined up.
Where no restitution paperwork shows up, a defendant should refrain from stipulating to any restitution amount. Indeed, if the state is seeking restitution only under 609.10, without any record of the amount – either from a trial or stipulation – there may be a valid demand for a jury trial to determine that amount. Might be fun.
State v. Moore, Minn.Ct.App., 3/1/2011.
This unpublished Opinion gets included only because Mr. Moore challenged the trial court’s imposition of the $75.00 public defender fee. Although denominated “public defender fee” the money in fact goes into the general fund.
The trial court imposed this fee by rote, having made no findings about whether Mr. Moore could pay it. The appellate court wasn’t amused:
Both the legislature and the supreme court have clearly expressed their intent that a district court’s discretion to impose copayments is contingent on findings of a defendant’s ability to pay. See Minn. Stat. § 611.20, subd. 2 (2010) (“If the court determines that the defendant is able to make partial payments [for counsel], the court shall direct partial payments to the state general fund.”) (emphasis added); Minn. R. Crim. P. 5.04, subd. 5 (“If the court, after finding the defendant eligible for district public defender services, determines that the defendant now has the ability to pay part of the costs, it may require a defendant to make partial payments as provided in Minnesota Statutes, Section 611.20.”) (emphasis added). The imposition of the copayment is reversed.
So, the trial court has to make those findings, which, it would seem from the two cases just above, require a factual basis. What’s the source of that factual basis? The pre sentence report? If so, should defendants (politely) decline to provide financial information (including releases) to the probation office? Lastly, notice that it’s not an all or nothing proposition. The trial court can determine that a defendant can only pay part of this fee.
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