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Kirby v. State10/9/2003
ing guidelines based, in part, on the trial court's express finding that the need for "payment of restitution to the victim outweighed the need for a prison sentence." At the time of the sentencing hearing, the settlement and release had already been executed. Because we do not have a transcript of the sentencing hearing, we do not know if the settlement agreement was brought to the trial court's attention at this time. However, if it were Kirby's position that the settlement agreement precluded an award of restitution, it was incumbent on him to bring this to the judge's attention. If the settlement agreement indeed precluded restitution, the victim's need for restitution could not serve as a basis for the downward departure.
CONCLUSION
Based on the foregoing, we conclude that a settlement agreement between the victim and the defendant executed prior to the disposition of a criminal case does not constitute a clear and compelling reason for the trial court not to order restitution as a matter of law. We therefore approve Kirby and disapprove Vandonick to the extent that it is inconsistent with this decision. We remand this case for proceedings consistent with this decision, including a full evidentiary hearing pursuant to the restitution statute.
It is so ordered.
ANSTEAD, C.J., and WELLS, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
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