Summary 2007 WY 199

Summary of Decision issued December 14, 2007

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Case Name: Hite v. State

Citation: 2007 WY 199

Docket Number: S-07-0066

Appeal from the District Court of Laramie County, Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel, Wyoming Public Defender Program

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Timothy J. Forwood, Assistant Attorney General

Date of Decision: December 14, 2007

Issues: Whether Appellant waived his right to challenge the restitution portion of his sentence. Whether a restitution award for spousal support exceeds the trial court’s statutory authority and making such an award with no supporting evidence is an abuse of discretion.

Facts/Discussion: Appellant entered into a written plea agreement in which he pleaded guilty to felony battery, third offense, against his wife. As part of his sentence, he was ordered to pay $5,400 in restitution.
Waiver: A challenge to the legal authority of a sentencing court to impose restitution is essentially an allegation that an illegal sentence has been imposed. Challenges to the factual basis of an award of restitution can be waived in certain circumstances by the defendant’s voluntary actions, such as entering into a plea agreement, and then failing to make any objection at sentencing. In contrast, a challenge by a defendant to the authority of a trial court to make a particular award of restitution is reviewed on appeal under a de novo statutory interpretation standard whether or not the defendant objected or entered into a plea agreement. The reason for conducting a de novo review under such circumstances is that a court has only that authority to act which is conferred by the subject statute. A penal statute cannot be extended by implication or construction to persons or things not expressly brought within its terms, nor to cases not within the letter of the statute. An order of restitution by a trial court which exceeds the authority granted by the statutes governing restitution would be void, and a void order may be challenged at any time.
Restitution: The legal authority of a sentencing court to impose restitution is solely a creature of statute. A sentencing court only has statutory authority to fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant’s criminal activity. Wyo. Stat. 7-9-103(b) (2007). “Pecuniary damages” are defined by statute as “all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event, including damages for wrongful death. It does not include punitive damages and damages for pain, suffering, mental anguish and loss of consortium.” Wyo. Stat. 7-9-101(a)(iii) (2007).
In the present action, the only information in the record is that restitution was ordered for payments made to the victim for “loss of support.” Without further specificity, it is impossible to tell if “loss of support” fits the statutory definition of “pecuniary damage.” “Support” is a generic term with many meanings. Probably most significantly for our purposes, “support” generally means to assist or help. That still leaves the field wide open. The parties suggest the payments were possibly for child support or spousal support. Even if these types of support qualify as pecuniary damages, these suggestions are only speculative and not sustained by anything in the record. Therefore, there is not an adequate evidentiary basis to uphold the order of restitution.

Holdings: It is the responsibility of the State to prove a victim’s legal entitlement to restitution. The State failed to satisfy its burden at sentencing. “Loss of support” without further definition does not meet the requirements of the statutory mandate that restitution be ordered only for “pecuniary damages.” The action is reversed and remanded for entry of an amended judgment and sentence consistent with this opinion.

J. Golden delivered the opinion for the court.

Link: http://tinyurl.com/288l3j .