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State v. Dexter12/19/2003
. Goeller, 276 Kan. 578, Syl. 1, 77 P.3d 1272 (2003). Finally, this court has unlimited review over the district court's interpretation of statutes. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
Our application of these standards begins with a review of the cases relied upon by, or distinguished by, the parties, the district court, and the Court of Appeals.
In State v. Ball, this court held:
"When . . . a defendant has been charged with numerous offenses and has agreed to plead guilty to one or more counts and pay restitution for each of the charged offenses in exchange for the State's agreement to dismiss several charges . . . the sentencing court has authority to order the restitution provided in the plea agreement." 255 Kan. at 701.
In so holding, the court found that K.S.A. 1992 Supp. 21-4603 and 21-4610 did not limit a court's authority to order restitution for charged offenses which were dismissed pursuant to a plea agreement. 255 Kan. at 699-701. However, the court specifically reserved the question before us today, noting that the decision did not address the "legality of orders that a defendant pay restitution for crimes with which he has not been charged or crimes for which he has not agreed to pay restitution." 255 Kan. at 701.
In State v. Turner, 22 Kan. App. 2d 564, 919 P.2d 370 (1996), the Court of Appeals addressed the question left unresolved by Ball. The facts of Turner were similar to those of the case at bar. In Turner, the defendant pled guilty to two counts of forgery in exchange for the State's dismissal of two other counts. The trial court ordered restitution on all four counts. Defendant had neither agreed to pay restitution on the dismissed charges nor admitted to the allegations in the dismissed charges. Nevertheless, the Court of Appeals concluded that K.S.A. 21-4610(d)(1) did not limit the sentencing court's authority to order restitution on crimes to which the defendant did not plead. 22 Kan. App. 2d at 567. The Court of Appeals offered no further analysis of its decision, and no petition for review was filed.
This court revisited the issue of restitution in State v. Hymer, 271 Kan. 716, 26 P.3d 63 (2001). There, the issue was whether an unpaid order of restitution made in a prior case could be imposed as a condition of probation in an unrelated, subsequent case. This court concluded it could not, holding that, absent an agreement by the defendant, K.S.A. 2000 Supp. 21-4610(d) limited restitution to the damage or loss caused by the offense for which defendant was sentenced. Because the restitution in the prior case clearly was not caused by Hymer's current crime of conviction and because Hymer did not agree that the previous restitution order could be imposed as a condition of probation, imposition of the previous restitution order as a condition of probation was improper. 271 Kan. at 724.
The Court of Appeals has addressed the restitution issue in the context of a plea agreement twice more since Hymer. In State v. Hall, 30 Kan. App. 2d 746, 49 P.3d 19 (2002), the defendant was originally charged with aiding and abetting two drive-by shooters, but he pled guilty to two counts of aiding a felon for assisting the shooters in formulating an alibi. The district court ordered the defendant to pay over $100,000 in restitution for the shooting victims' funeral, medical expenses, and property damage.
The Court of Appeals cited Ball, Turner, and Hymer in vacating the restitution order. First, the Hall court noted Ball's holding that the restitution statute does not limit a court's authority to order restitution on dismissed charges where the defendant has agreed to pay restitution a
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