Restitution Order Reduced From $19K to $156.00

State v. Nelson, Minn.Ct.App., 3/22/2011.  Ms. Nelson worked for a tanning salon.  The owner of the salon discovered that Ms. Nelson and three other salon employees were helping themselves to free, after hours tanning; and the four were also giving free tanning sessions to others.  The owner estimated that the salon had lost $7,700.00 in lost revenue.

The state charged Ms. Nelson with felony theft by swindle, alleged to have occurred during a specified period of time.  However, the state did not file the charge until after the three year limitations period had run.  The trial court dismissed this court (as well as a similar count against the three coworkers).  The state also charged Ms. Nelson with misdemeanor theft for the free tanning sessions that she had (presumably) enjoyed during a period of time separate from the felony time period.  Ms. Nelson pleaded guilty to that misdemeanor, agreeing to pay restitution determined by the trial court.

The salon’s owner presented a bill for $24,412.  Here’s how it broke down:

New computer software:	$690.00
New computer hard drive:	$700.00
Stolen tanning services:	$7,668.00
Employee hours spent reconstructing the thefts:	$2,604.00
“Personal hours”:	$12,750.00

The trial court awarded $19,412.00, subtracting an insurance payout of $5,000.00.  The appellate court orders a refund.

Whether an item meets the statutory requirements to qualify for an award of restitution is a question of law that the appellate court reviews de novo.  A loss claimed must be directly caused by the conduct for which the defendant was convicted.  State v. Latimer, 604 N.W.2d 103 (Minn. App. 1999). 

Here, most of the restitution awarded was for losses that occurred outside the period of time covered by the misdemeanor conviction.  Gone.  The award also included losses flowing from the conduct of Ms. Nelson’s coworkers, whose theft by swindle charge had also been dismissed on limitations grounds.  Gone.  As to the computer software and hardware, the state failed to show that these items were either broken or damaged.  Gone.  The employee and personal hours totaled over fifteen hundred hours, which the appellate court found to be excessive.  Gone

That leaves the value of the tanning sessions of which Ms. Nelson, herself, partook:  $156.00.  The appellate court finished by reminding trial courts of its duty to consider whether a defendant has the ability to pay restitution.