 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Dexter12/19/2003
s part of a plea bargain. Next, the court discussed Turner which extended the Ball holding to grant a court authority to order restitution on dismissed counts even where the defendant did not agree to pay restitution and did not admit the allegations. 30 Kan. App. 2d at 749. The court criticized Turner, stating:
" xtending the district court's authority to order disputed restitution on charges which are not admitted creates the potential for unfairness. If a complaint contains crimes which the defendant did not commit, he or she would be in the untenable position of choosing whether to go to trial on all of the charges or to plead guilty to the crimes actually committed, but pay the victims of another person's crimes." 30 Kan. App. 2d at 750.
The Hall court found both Ball and Turner to be factually distinguishable because Hall's conviction was "sufficiently distinct both in nature and in temporal proximity from the acts actually causing the damages, the shooting, to call into question the propriety of the restitution award." Citing Hymer, the court held that " nexus must exist between the crime of conviction and the conduct for which restitution was imposed." 30 Kan. App. 2d at 750. Because Hall's criminal activity of assisting the shooters with their false alibi did not cause the shooting victims' damages, the court concluded there was no such nexus and vacated the restitution order. 30 Kan. App. 2d at 750. No petition for review was filed in Hall.
The most recent Court of Appeals case to address the restitution issue was State v. Zeiner, 31 Kan. App. 2d 606, 69 P.3d 213 (2003). The facts of Zeiner were similar to the facts of Hall in that the defendant did not plead guilty to the underlying felony which resulted in harm to the victim and did not agree to pay restitution on dismissed charges. As in Hall, the Zeiner court found no causal relationship or nexus between the crime of conviction and the harm caused as required by K.S.A. 2002 Supp. 21-4610(d)(1). 31 Kan. App. 2d at 608. Again, no petition for review was filed.
Finally, this court recently decided State v. Goeller, 276 Kan. 578, in which the defendant pled to several counts, including driving under the influence , in exchange for the State dismissing other counts, including one of driving left of center. The district judge ordered restitution for injuries caused when the vehicle Goeller was driving collided with the victim's automobile. Goeller argued the injuries were actually and proximately caused by his driving left of center, a charge dismissed pursuant to his plea agreement. He posited the issue as one of causation, not as whether the dismissal of the charge of driving left of center vitiated the district court's authority to order restitution for damages which arose from that more specific charge. We found that there was substantial competent evidence that Goeller's driving under the influence caused the injuries to the victim. 276 Kan. at ___.
In the instant case, the Court of Appeals relied primarily upon Hymer in ruling that the restitution order was proper because the Bank's losses were caused, directly or indirectly, by Dexter's crime of conviction. In finding that there was a nexus between Dexter's crime of conviction and the conduct for which restitution was imposed, the court cited the Hymer court's discussion of three foreign cases: State v. Cummings, 120 Ariz. 69, 583 P.2d 1389 (Ariz. App. 1978); LaPann v. State, 167 Ga. App. 288, 306 S.E.2d 373 (1983); and Collins v. State, 701 S.W.2d 275 (Tex. Crim. App. 1985).
In Cummings, the defendant pled guilty to burglarizing his former employer in 1977. He confessed to burglarizing the same premises a few weeks earlier and
Page 1 2 3 4 5 6 7 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|