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State v. McIntire8/31/2004
Submitted on Briefs: December 19, 2003
Michael McIntire was convicted of burglary in the District Court for the Eighth Judicial District, Cascade County. He appeals from the court's sentencing order requiring him to pay restitution. We affirm.
We address the following issues on appeal:
1. Whether the District Court erred when it ordered McIntire to pay restitution on two counts of misdemeanor forgery when those charges had been dismissed.
2. Whether the District Court erred when it ordered McIntire to pay restitution as a condition of his suspended sentence.
Factual and Procedural Background
On January 9, 2003, the Cascade County Attorney filed an Information charging McIntire with one count of felony burglary, one count of misdemeanor theft, and two counts of misdemeanor forgery. In the affidavit supporting the State's motion for leave to file the Information, the investigating officer stated that McIntire's neighbor died on November 3, 2002, and that McIntire admitted entering her apartment shortly after her death and removing her computer. The officer also stated that McIntire admitted forging two of his deceased neighbor's checks, making them payable to himself in the amounts of $200 and $250. Those checks were cashed on November 14 and 15, 2002.
McIntire entered into a plea agreement with the Cascade County Attorney on May 7, 2003. In the plea agreement, McIntire agreed to plead guilty to the charge of burglary and the county attorney agreed to dismiss the misdemeanor theft and forgery charges. The county attorney also agreed to recommend to the court that McIntire be sentenced to a three-year suspended sentence. The plea agreement specified that the county attorney may recommend restitution to any victim.
On May 27, 2003, the District Court accepted McIntire's Alford plea after receiving the testimony of the investigating officer and finding a sufficient factual basis for the burglary charge. See North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. The court conducted a sentencing hearing on June 24, 2003, wherein the matter of restitution was discussed at length. Defense counsel argued at the hearing that because the forgery charges were dismissed as part of the plea agreement, McIntire could not be required to pay restitution for the checks. Defense counsel also argued that there was no "victim" with respect to the dismissed forgery charges, thus the court lacked specific statutory authority to impose restitution.
The prosecutor argued, on the other hand, that the restitution order was appropriate because McIntire removed the checks from the victim's apartment during the burglary and that forging the checks was part of the same transaction as the burglary. The prosecutor also argued that there was a victim to the forgery--the estate of McIntire's neighbor.
The District Court determined that the burglary and the forgery of the stolen checks were a continuing transaction, hence the court ordered McIntire to pay restitution in the amount of $450. McIntire appeals the District Court's restitution order.
Issue 1.
Whether the District Court erred when it ordered McIntire to pay restitution on two counts of misdemeanor forgery when those charges had been dismissed.
McIntire argues on appeal that the court exceeded its statutory authority by requiring him to pay restitution for offenses for which he was not convicted and which he did not admit to committing. McIntire also argues that because the forgery charges were dismissed, there was no "victim of the offense" as required by § 46-18-201(5
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