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State v. Dexter12/19/2003
taking goods but was never charged with the earlier offense. As a condition of probation, the defendant was ordered to make restitution to his former employer for the loss suffered in the earlier burglary. The Arizona Court of Appeals upheld the restitution order as "reasonably related to reparations." 120 Ariz. at 70.
In LaPann, the defendant, a county tax commissioner, was suspended from his job on suspicion of theft and forgery but continued to receive a salary until he was convicted. A Georgia statute prohibited a suspended county officer from receiving income from his office. As a condition of probation, the court ordered the defendant to repay the salary he had received while suspended. The Georgia Court of Appeals upheld the restitution order under a Georgia statute very similar to K.S.A. 2002 Supp. 21-4610(d). 167 Ga. App. at 292.
In Collins, the defendant was convicted of falsifying an application for AFDC benefits in April 1983. As a condition of probation, she was ordered to pay restitution for payments improperly received as a result of that falsification and also for prior payments improperly received. The Texas Court of Appeals concluded that the trial court did not err in basing the restitution order on the defendant's "prior improprieties concerning AFDC benefits." 701 S.W.2d at 277.
The Hymer court distinguished these cases on several grounds. First, it was noted that only in the Georgia decision of LaPann was there any discussion of a statutory provision that limited restitution to the consequences of the crime. The Arizona court, in Cummings, noted that it would uphold the exercise of discretion in imposing probation conditions reasonably related to reparations so that only where the terms of probation "bear no relationship whatever to the purposes of probation" will the award be overturned. Cummings, 120 Ariz. at 71. The Texas court contrasted the probation statute which allowed an award "in any sum" to the parole statute which restricted restitution to the victim of the prisoner's crime. Collins, 701 S.W.2d at 276. Thus, the statutes were much broader than the provisions in Kansas.
Second, the court in Hymer distinguished these cases because, while there was no nexus between Hymer's crime of conviction and the unpaid restitution order in the prior case, in each of the foreign cases restitution was connected to the crime of conviction. The Hymer court noted that "the person or entity that suffered a loss as a result of the defendant's charged crime was the same person or entity that suffered a loss as a result of the defendant's uncharged offense. Furthermore, the charged and uncharged offenses were the same." 271 Kan. at 722-23. The court also stated: "We note in passing that [K.S.A. 2002 Supp.] 21-4610(d) would not preclude restitution for such loss or damages at issue in the LaPann or Collins cases. Those losses were caused, directly or indirectly, by the crime for which the defendant was sentenced." 271 Kan. at 724.
In the instant case, the Court of Appeals concluded that the Hymer court's omission of Cummings in the latter quotation was probably an oversight since LaPann, Collins, and Cummings were all discussed as having a nexus. The Court of Appeals noted that the nexus between Dexter's crime of conviction and the conduct for which restitution was imposed was similar to the nexus found in the three foreign cases: "(1) the Bank was the victim of Dexter's convicted offense and the dismissed offenses; (2) the charged and dismissed offenses were the same; and (3) all seven offenses arose under a single underlying security agreement." Thus, the court held that because the Bank's losses were caused, directly or indirectly, by Dexter's
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