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State v. Dexter12/19/2003
crime of conviction, the trial court's restitution order was consistent with K.S.A. 2002 Supp. 21-4603d and 21-4610.
Contrary to the Court of Appeals' analysis, the omission of the Cummings case from the above-referenced sentence in Hymer was significant. As previously noted, the holding in Hymer was that K.S.A. 2000 Supp. 21-4610(d) limits the trial court to "ordering restitution for the damage or loss caused by the offense for which the defendant is being sentenced." 271 Kan. at 724; see State v. Goeller, 276 Kan. at ___. The monetary loss in Cummings, although suffered by the same victim for the same crime, resulted from a separate and distinct burglary several weeks before the crime charged and, hence, was not caused by the crime for which the defendant was sentenced. In this regard, of the three cases discussed in Hymer, the Cummings case is most factually similar to this case in which Dexter was charged with failing to account for the sale proceeds of seven different vehicles during various periods of time. The failure to account for sale proceeds of the 1989 Chevy pickup did not cause the loss incurred from the failure to account for the other six vehicles.
Of the three foreign cases cited in Hymer and discussed by the Court of Appeals in this case, only in LaPann was there a causal connection between the loss and the crime of conviction as we require in today's ruling. Although in Hymer we stated "in passing" that the restitution in Collins was caused directly or indirectly by the crime, it is more accurate to state that only a portion of the loss was caused by the defendant's crime. Other portions of the restitution, while connected to the crime and thus within the broad range of the Texas statute, were not caused by the crime as required by the Kansas statute as we interpret it in this case. In contrast, in LaPann the amount owed in restitution arose because of the crime. The restitution was for wages paid while the defendant, a public servant, was on administrative leave pending the outcome of the criminal proceeding. Statutorily, LaPann was not entitled to this salary once convicted of the offense. Thus, the obligation to repay the salary arose because of the commission of the charged crime.
In discussing these cases, the Court of Appeals focused upon the elements of connectedness discussed in Hymer: the similarity of the victim and of the crimes. This focus resulted in an overly broad interpretation of "nexus" and ignored the essential, statutorily mandated requirement that the loss be caused by, not merely connected to, the crime of conviction. The Court of Appeals' reading of this portion of the analysis in Hymer also ignores Hymer's holding that " bsent agreement by the defendant, the district court is limited to ordering restitution only for the offense for which the defendant is sentenced." Hymer, 271 Kan. 716, Syl. 2.
We hold that a district court, when sentencing a defendant to probation, may only order restitution for losses or damages caused by the crime or crimes for which the defendant was convicted unless, pursuant to a plea bargain, the defendant has agreed to pay for losses not caused directly or indirectly by the defendant's crime. In this case there was no agreement except that the defendant would pay restitution through the bankruptcy proceeding. The district court had discretion to determine that this amount and method was inadequate payment for the loss caused by the crime of conviction. However, as a matter of law, the restitution, absent an agreement to the contrary, was limited to the loss caused by the crime to which Dexter pled. The crime for which Dexter was convicted, as alleged in the complaint and recited at the plea hearing, was
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