Trial Court Can Still Order Restitution Even Eight Years After Sentencing

State v. Andersen, Minn.S.Ct., 12/9/2015.  Mr. Andersen is serving a sentence of life without possibility of release from a June 2008 conviction. At the time of sentencing the court had left the question of restitution open for thirty days.  The state filed a restitution request within that thirty days but it took the court some eight years - October 2014 - to get around to granting that request.  After sentencing an attorney different from trial counsel filed a motion for a new trial but did not file a certificate of representation.  Trial counsel did not withdraw. The state served trial counsel with the restitution motion as well as Mr. Andersen.  No one filed a response to the motion for restitution.  Mr. Andersen thought that ordering restitution eight years after sentencing for a man who was never going to get out of prison was a bit harsh.

When the Department of Corrections got word of the restitution order in October 2014 it began to garnish his prison accounts.  Mr. Andersen filed a motion back with the trial court asking the court to take another look at the restitution business, to order DOC to return his money, and to appoint an attorney to represent him.  The trial court said no to the appointment of counsel; said that the state's service on Mr. Andersen's trial attorney was proper service; and said that Mr. Andersen was required to pay up.

Mr. Andersen made two challenges to the trial court's authority to order restitution.  First, he said that the state's service of the motion was not proper.  The trial court said that service on Mr. Andersen's trial attorney was effective to give Mr. Andersen notice.  Justice Diezten comes to the same conclusion; because trial counsel did not withdraw from representation - See Minn.Gen.R.Prac. 703 - the state's service on that attorney was effective even though by the time the state served its motion a different attorney had filed a motion for a new trial.  New trial attorney's failure to have filed a certificate of representation inured to the detriment of Mr. Andersen.  The court ducks the question whether the state's (additional) service of its restitution motion on Mr. Anderson personally was ineffective because he was represented by counsel.

Mr. Andersen's second challenge was, "Really? After eight years?" Justice Dietzen points out that the restitution statute does not set a deadline for the trial court to order restitution. So long as the statutory requirements are met the trial court can order restitution whenever it likes.  As to appointment of counsel, it's true that the court of appeals has said that a defendant has the right to counsel at a restitution hearing.  State v. Maddox, 825 N.W.2d 140 (Minn.Ct.App. 2013.)  Justice Dietzen ducks the question whether Maddox should be the law by concluding that whatever Mr. Andersen's motion to "resolve the restitution issue" was, it was not a restitution hear.  Finally, the court said that a motion to the district to order DOC to give Mr. Andersen back his money was not the correct way to go about challenging an administrative action.