WHAT DO YOU DO IF YOU HAVE A RESTITUTION AMOUNT THAT YOU SIMPLY CAN’T PAY?
You can approach this in two ways: (1) Petition to the court that the restitution amount is unworkable. If this is the argument, it is the defendant’s burden to prove that he is unable to pay. (See Restitution—ability to pay amount). (2) Argue that the restitution evidence the State presented to the trial court was not reliable. By relying on the evidence, the trial court abused its discretion. Id.
Restitution Standard
Method of determining the amount of any required restitution is a matter within the discretion of the trial court. State v. Rhodes, 77 P.3d 502 (Kan. Ct. App. 2003).
Sentencing judge has considerable discretion in determining the amount of restitution. State v. Applegate, 976 P.2d 936 (Kan. 1999).
Restitution—Determining Valuation
The usual standard used in calculating restitution is the item’s “fair market value.” In Baxter, this court stated: “Kansas courts have consistently held that an award of restitution that exceeds fair market value constitutes an abuse of discretion.” State v. Baxter, 118 P.3d 1291 (Kan. Ct. App. 2005).
Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the sentencing judge’s determination of restitution must be based on reliable evidence which yields a defensible restitution figure. A victim of a property crime is entitled to restitution only up to the amount of loss. State v. Chambers, 138 P.3d 405 (Kan. Ct. App. 2006).
When measuring damages to personal property where the item damaged has no market value, other relevant factors must be considered such as the cost of repair, the original value, the loss of use, any special value to the owner, the loss of expected profits, and the cost of replacement. Kansas Power & Light Co. v. Thatcher, 797 P.2d 162 (Kan. Ct. App. 1990).
Abuse Of Discretion
If the issue concerns the amount of restitution and the manner in which it is made to the aggrieved party, it is reviewed under the abuse of discretion standard. State v. Hunziker, 56 P.3d 202 (Kan. 2002); State v. Crowell, 2018 WL 1352534 (Kan. Ct. App. 2018).
A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) the action is based on an error of law; or (3) the action is based on an error of fact. State v. Marshall, 362 P.3d 587 (Kan. 2015).
In order to prove abuse of discretion, need to prove there was not substantial evidence to support the district court’s restitution order. See State v. Schmitter, 2010 WL 445915 (Kan. Ct. App. 2010).
Judicial discretion in ordering a defendant to pay restitution is abused when no reasonable person would take the view adopted by the trial court. State v. Hinckley, 777 P.2d 857 (Kan. Ct. App. 1989).
In order to prove abuse of discretion, need to prove there was not substantial evidence to support the district court’s restitution order. See State v. Schmitter, 2010 WL 445915 (Kan. Ct. App. 2010).
Unworkability
A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court that sentenced the defendant to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant’s immediate family, the court may waive payment of all or part of the amount due or modify the method of payment. KSA 21-6604(d)
“In addition to or in lieu of any of the above, the court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant’s crime, unless the court finds compelling circumstances which would render a plan unworkable.” K.S.A. 2017 Supp. 21-6604(b)(1). Defendant has the burden to show evidence of compelling circumstances resulting in an unworkable restitution plan.