State v. Moore ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 45976
STATE OF IDAHO, )
) Filed: September 27, 2019
Plaintiff-Respondent, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
ALLEN LEE MOORE, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Richard D. Greenwood, District Judge.
Order of restitution, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
General, Boise, for respondent.
________________________________________________
BRAILSFORD, Judge
Allen Lee Moore appeals from the district court’s order of restitution. He asserts the
district court abused its discretion by entertaining the State’s motion for restitution, which the
State submitted approximately thirty days after the district court’s deadline for such a motion.
We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Moore pled guilty to felony aggravated battery and to misdemeanor battery. The district
court sentenced Moore to a unified term of eight years with two years determinate, but
suspended Moore’s sentence and placed him on probation. At the sentencing hearing, the State
requested a restitution order, noted that the restitution amount was $1,650.39 at that time, and
further requested the court to leave restitution open for ninety days in anticipation of requesting
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an additional amount. The district court partially granted the State’s request and included in its
probation order that “the State is directed to notice restitution for hearing if the parties cannot
stipulate to an amount within 60 days.”
Approximately thirty days after this deadline, the State filed a motion seeking $2,135.63
in restitution. At the hearing on the motion, the State explained that the filing was late due to a
clerical error; the restitution department incorrectly calendared the deadline for ninety days
rather than sixty days; and the State filed the motion on January 23, 2018--the same day the State
received the final statement for the Crime Victims Compensation Program (CVCP) from the
Idaho Industrial Commission. Based on these facts, the State requested relief from the sixty-day
deadline. Moore stipulated that “it looks like the State received a letter dated January 23rd from
the Industrial Commission, their [CVCP].” Although Moore acknowledged that the State’s late
filing did not prejudice him and that he did not object to the motion on the merits, he did object
to the motion as untimely. Relying on State v. Ferguson, 138 Idaho 659, 67 P.3d 1271 (Ct. App.
2002), Moore argued the additional time was not “necessary.”
The district court rejected Ferguson as controlling and granted the State leave from the
original deadline. The district court explained that, unlike Ferguson, Moore’s case remained
ongoing and that the district court’s deadline was neither jurisdictional nor statutory but rather a
convenient means of ensuring the parties concluded restitution. Further, the district court based
its ruling on the fact that the CVCP information was unavailable until after the deadline. Finally,
the district court concluded that its procedural deadline should not “overrule the mandates of the
[restitution] statute.” Despite the district court granting the State’s request for an enlargement of
time to file its restitution motion, the district court entered an order awarding without explanation
only $1,650.39 in restitution--the original amount of restitution at the time of the sentencing
hearing. Moore timely appeals.
II.
STANDARD OF REVIEW
Idaho Code Section 19-5304(2) authorizes a sentencing court to order a defendant to pay
restitution for economic loss to the victim of a crime. The decision of whether to order
restitution, and in what amount, is within the discretion of a trial court, guided by consideration
of the factors set forth in I.C. § 19-5304(7) and by the policy favoring full compensation to crime
victims who suffer economic loss. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct.
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Ohio App. 2002); State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct. App. 1989). Thus, we
will not overturn an order of restitution unless an abuse of discretion is shown. Richmond, 137
Idaho at 37, 43 P.3d at 796. When a trial court’s discretionary decision is reviewed on appeal,
the appellate court conducts a multi-tiered inquiry to determine whether the lower court:
(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such
discretion; (3) acted consistently with any legal standards applicable to the specific choices
before it; and (4) reached its decision by an exercise of reason. Lunneborg v. My Fun Life, 163
Idaho 856, 863, 421 P.3d 187, 194 (1994).
III.
ANALYSIS
“Restitution orders shall be entered by the court at the time of sentencing or such later
date as deemed necessary by the court.” I.C. § 19-5304(6). Section 19-5304(6) makes clear that
“the court may need to grant the prosecution a reasonable amount of time necessary to gather
information so as to locate all victims and correctly compute the amount of restitution.” State v.
Jensen, 149 Idaho 758, 762, 241 P.3d 1, 5 (Ct. App. 2010) (quoting Ferguson, 138 Idaho at 662,
67 P.3d at 1274).
Moore asserts the district court abused its discretion “by entertaining the State’s tardy
motion.” He argues the district court did not act consistently with I.C. § 19-5304(6) because the
additional time the district court granted the State was “not actually ‘necessary.’” Moore reasons
that the additional time was unnecessary because the district court’s “finding that the victims
were unable to provide the restitution documentation to the State within the [original] sixty-day
deadline is not supported by substantial evidence.”
We disagree that the district court abused its discretion. First, contrary to Moore’s
assertion, the district court did not find the victims were unable to provide the restitution
documentation within the original deadline. Rather, the district court found that the CVCP
information from the Industrial Commission “wasn’t available” until after the deadline. Based
on the context of the district court’s comments, we understand this finding to mean that the State
did not receive the CVCP information from the Industrial Commission until January 23--a fact to
which Moore stipulated. Based on this fact, the State demonstrated additional time was
necessary because the State had not received complete restitution information by the deadline.
See State v. Keys, 160 Idaho 95, 97-98, 369 P.3d 313, 315-16 (Ct. App. 2016) (“The state may be
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permitted to take a reasonable amount of time necessary to gather information in an effort to
correctly compute the amount of restitution, but the state must demonstrate that the additional
time was necessary.”).
Second, Moore fails to cite any case law or other authority to support his suggestion that
the district court must find the victims were unable to provide restitution information (versus the
State had not yet received that information) within the court’s original deadline before additional
time under I.C. § 19-5304(6) is necessary. A party waives an issue on appeal if either authority
or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
Accordingly, Moore waived this issue on appeal.
Finally, the district court retained jurisdiction to modify the terms and conditions of its
probation order, including the time within which the State could file a restitution motion. See
State v. Dorsey, 126 Idaho 659, 661, 889 P.2d 93, 95 (Ct. App. 1995) (holding district court
retained jurisdiction during probationary period to modify probation order regarding restitution).
In Dorsey, the district court placed Dorsey on probation for five years and ordered the prosecutor
to submit a restitution claim within thirty days. Id. at 660-61, 889 P.2d at 94-95. More than
three months later, the prosecutor submitted a letter to Dorsey’s attorney providing the restitution
amount and requesting a response. Id. at 660, 889 P.2d at 94. Due to oversights, the prosecutor
did not provide the letter to the district court until approximately twenty-nine months later. Id.
After a hearing on the matter, the district court ordered Dorsey to pay restitution, and he
appealed. Id. at 661, 889 P.2d at 995. On appeal, Dorsey argued “the prosecutor’s failure to
comply with the probation order precluded the district court from further exercising its discretion
with regard to the question of restitution.” Id. This Court rejected Dorsey’s argument ruling
that:
Although the [probation] order specified that the prosecutor would establish the
sums due and submit a claim to defense counsel and the court within thirty days,
the order did not purport to limit the recovery of restitution nor impose any
sanction for noncompliance on the part of the prosecutor. Following entry of this
order, the court retained jurisdiction during the probationary period, with the
authority to modify the terms and conditions of probation, pursuant to
I.C. § 20-221.
Id.
As in Dorsey, the district court in this case was clearly within its discretion to modify its
probation order to allow the State additional time to file its restitution motion. Nothing in the
district court’s probation order purported to limit the recovery of restitution or to impose any
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sanction on the State for noncompliance with the order. The State demonstrated additional time
was necessary, and when the district court modified its order to allow the additional time,
Moore’s case was not closed, but rather it remained ongoing and Moore remained on probation.
IV.
CONCLUSION
Accordingly, the district court did not abuse its discretion by considering the State’s late
filing and awarding restitution. The order of restitution is affirmed.
Chief Judge GRATTON and Judge LORELLO CONCUR.
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