State v. Street , 306 Neb. 380 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/31/2020 08:09 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. STREET
Cite as 306 Neb. 380
State of Nebraska, appellee,
v. Chad K. Street,
appellant.
___ N.W.2d ___
Filed July 10, 2020. No. S-19-307.
1. Sentences: Restitution: Appeal and Error. The rule that a sentence
will not be disturbed on appeal absent an abuse of discretion is applied
to the restitution portion of a criminal sentence just as it is to any other
part of the sentence; sentences within statutory limits will be disturbed
by an appellate court only if the sentence complained of was an abuse
of judicial discretion.
2. Restitution. Restitution is purely statutory, and a court has no power to
issue such an order in the absence of enabling legislation.
3. Sentences: Restitution. Restitution ordered by a court pursuant to Neb.
Rev. Stat. § 29-2280 (Reissue 2016) is a criminal penalty imposed as a
punishment for a crime and is part of the criminal sentence imposed by
the sentencing court.
4. ____: ____. Restitution, like any other part of the sentence, involves
discretion.
5. Restitution. The appropriateness of an order of restitution is necessarily
a subjective judgment and not a mathematical application of factors.
6. Restitution: Appeal and Error. On appeal, an appellate court does not
endeavor to reform the trial court’s order. Rather, the appellate court
reviews the record made in the trial court for compliance with the statu-
tory factors that control restitution orders.
7. Restitution. Restitution is limited to the direct loss resulting from that
offense of which the defendant has been convicted.
8. Restitution: Damages. Under Neb. Rev. Stat. § 29-2281 (Reissue
2016), before restitution can be properly ordered, the trial court must
consider (1) whether restitution should be ordered, (2) the amount of
actual damages sustained by the victim of a crime, and (3) the amount
of restitution a criminal defendant is capable of paying.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. STREET
Cite as 306 Neb. 380
9. Sentences: Restitution: Evidence. In accordance with Neb. Rev. Stat.
§ 29-2281 (Reissue 2016), the restitution “shall be supported by evi-
dence which shall become a part of the court record,” but a sentencing
court has broad discretion as to the source and type of evidence and
information that may be used.
10. ____: ____: ____. The evidence supporting restitution must provide
meaningful information from which the sentencing court can meaning-
fully consider the various statutory factors set forth in Neb. Rev. Stat.
§§ 29-2280 through 29-2289 (Reissue 2016).
11. Criminal Law: Statutes. Penal statutes are to be given a strict construc-
tion which is sensible.
12. Statutes. In the absence of anything indicating to the contrary, statutory
language is to be given its plain and ordinary meaning.
13. Restitution: Damages. “Actual damages” under criminal restitution
statutes are not governed by the strict rules of damages applicable to
civil cases.
14. ____: ____. Restitution for actual damages or actual loss are meant to
make the victim whole by returning the victim to the position the victim
was in before the defendant’s actions.
15. Statutes: Legislature: Intent. The intent of the Legislature may be
found through its omission of words from a statute as well as its inclu-
sion of words in a statute.
16. Statutes: Appeal and Error. An appellate court is not permitted to read
additional words into a clear and unambiguous statute.
17. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
18. Statutes. To the extent there is a conflict between two statutes, the spe-
cific statute controls over the general statute.
19. Statutes: Words and Phrases. The word “may,” when used in a statute,
will be given its ordinary, permissive, and discretionary meaning unless
it would manifestly defeat the statutory objective.
20. Restitution. Under the plain language of Neb. Rev. Stat. § 29-2282
(Reissue 2016), reasonable replacement value is the measure of restitu-
tion only “if return or repair is impossible, impractical, or inadequate.”
21. Sentences: Restitution. It is a matter within the discretion of the sen-
tencing court to determine the proper measure of restitution in order to
return the victim as much as possible to the position the victim was in
before the defendant’s actions.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. STREET
Cite as 306 Neb. 380
22. Restitution: Proof. The State does not bear a strict burden of proof with
regard to restitution.
23. Sentences: Restitution: Evidence. In reviewing restitution as part of
the sentence in a criminal case, the question is whether there is com-
petent evidence in the record, as opposed to mere guess or conjecture,
which reasonably supports the court’s calculation of the amount of the
victim’s loss.
24. Restitution: Evidence. Restitution will be upheld if calculated by use
of reasonable methods; therefore, when the defendant does not present
contradictory evidence, the court does not err in relying on a victim’s
competent estimates of loss.
25. Sentences: Restitution. Under Neb. Rev. Stat. § 29-2281 (Reissue
2016), ability to pay is a consideration that the sentencing court must
weigh against the defendant’s obligations to the victim for the crime or
crimes committed; it is neither exclusive of other factors nor controlling
of the discretion of the court.
26. ____: ____. The certainty and precision prescribed for the criminal
sentencing process applies to criminal sentences containing restitution
ordered pursuant to Neb. Rev. Stat. § 29-2280 (Reissue 2016).
27. Sentences. In imposing a sentence, the sentencing court should state
with care the precise terms of the sentence to be imposed.
28. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
29. Sentences: Restitution: Appeal and Error. It is plain error for a sen-
tence of restitution to fail to specify whether the restitution is to be
made immediately, in specified installments, or within a specified period
of time.
30. Sentences. A sentence pronounced upon a defendant is controlling over
a later erroneous written sentence.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and Pirtle and Welch, Judges, on
appeal thereto from the District Court for Lancaster County,
Darla S. Ideus, Judge, on appeal thereto from the County
Court for Lancaster County, Thomas E. Zimmerman, Judge.
Judgment of Court of Appeals affirmed and remanded with
directions.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. STREET
Cite as 306 Neb. 380
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
The defendant appeals an order of restitution. He asserts that
the county court erred by ordering restitution of a damaged
vehicle in the amount of the cost of repairing the vehicle with-
out knowing whether those repair costs exceeded the vehicle’s
fair market value before the defendant’s crime. The defendant
also asserts that he is unable to pay the amount ordered. We
affirm the sentence as pronounced, but remand the matter with
directions to modify the written judgment to conform to the
pronounced sentence.
BACKGROUND
Chad K. Street pleaded to and was convicted of one count
of leaving the scene of an accident and one count of reckless
driving. The charges stemmed from an incident in the early
morning hours of February 20, 2017. Street crashed into the
victim’s unoccupied vehicle that was parked on the street in
front of the victim’s home. Street then fled the scene by foot,
leaving behind his own vehicle, which had been thrown onto
its side.
As part of the sentence, the State sought restitution under
Neb. Rev. Stat. §§ 29-2280 through 29-2289 (Reissue 2016).
At the sentencing hearing, the State adduced evidence that the
victim’s vehicle, a 2005 Chevy Equinox with roughly 79,000
miles, had been in good condition before the accident. After
the accident, it was no longer operational.
The vehicle was towed to a body shop. The victim later
found out from the body shop that the vehicle was “totaled.”
There was no evidence explaining what “totaled” meant.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. STREET
Cite as 306 Neb. 380
An estimator at the body shop prepared an estimate for the
vehicle’s repair to bring it back to its preaccident condition.
The estimator testified that the vehicle had been “hit hard in the
left rear.” According to the estimate, it would cost $10,347.70
to repair the vehicle so that it was in the same condition as it
was before Street hit it.
The victim could not recall the vehicle’s purchase price. No
evidence was presented as to the vehicle’s estimated fair mar-
ket value before the incident.
Concerning his ability to pay any restitution, Street testi-
fied that he rents an apartment through Veterans Affairs. He
testified that he pays a portion of the rent and that Veterans
Affairs pays the other portion. Street did not describe the
amount of his contribution. Street receives $1,017 in dis-
ability benefits each month. He pays $35 to $45 per month
for his cell phone and about $50 per month for cigarettes. He
testified that he voluntarily sends his wife, with whom he is
separated, $300 per month to help support their 3-year-old
daughter. The State presented evidence that over the prior
18 months, Street had posted five different bonds in a total
amount of $2,400.
Defense counsel argued at the sentencing hearing that the
State had failed to meet its burden of proof for restitution
because it had failed to present evidence of the vehicle’s
market value. According to defense counsel, civil principles
should apply such that “actual damages” under § 29-2281
for a vehicle are the lesser of either the repair costs or the
vehicle’s reduction in value. Thus, without evidence of the
vehicle’s fair market value before the incident, there was
insufficient evidence from which the court could calculate
actual damages for purposes of restitution under § 29-2280.
Defense counsel also asserted the evidence that the vehicle
was “totaled” demonstrated that under § 29-2282(3), “return
or repair is impossible, impractical, or inadequate.” Finally,
defense counsel argued that Street was indigent and would be
unable to pay any restitution.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. STREET
Cite as 306 Neb. 380
The county court ordered restitution in the amount of
$10,347.70, the cost of repairing the vehicle. The court rea-
soned that the language of the restitution statutes did not set
forth a civil standard requiring that the restitution be in the
amount of the vehicle’s fair market value before the crime if
repairing the vehicle would cost more than it had been worth.
Since there was no evidence presented by the parties as to
the market value of the vehicle before the crime, the court
explained, “the only number that I’ve got is the number that’s
contained in . . . the estimate.”
The court ordered any bonds that had been forfeited to be
reinstated to the victim. The court calculated that by the time
those bonds were applied, Street would owe approximately
$9,000 in restitution.
The court explained that while it did not “have a lot to go on
in terms of what [Street] could afford,” his voluntary payment
of $300 for his daughter’s care and his recent bond payments
indicated that he “ought to be able to handle $300 a month
toward restitution.” At that rate, it would take Street about
21⁄2 years to pay the balance of the restitution fully. The court
pronounced from the bench that the restitution be paid in the
amount of $300 per month until paid in full.
The monthly payment and term were not described in the
sentencing order, however. The sentencing order merely pro-
vides that Street pay a total of $10,347.70 to the victim.
Street appealed to the district court, assigning that the
county court erred in ordering restitution. Street argued that
there was insufficient evidence to support the order of restitu-
tion because there was no evidence of the vehicle’s fair mar-
ket value before the accident. Defense counsel also asserted
that the evidence the vehicle was “totaled” meant the cost
of repairing the vehicle exceeded its value. Lastly, Street
argued that because Street was indigent and the payment
resulted in Street’s income falling below the federal poverty
threshold, the evidence was insufficient to show he had a
reasonable ability to pay. The district court found the order
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306 Nebraska Reports
STATE v. STREET
Cite as 306 Neb. 380
of restitution was supported by the evidence and not contrary
to law.
Street appealed to the Nebraska Court of Appeals, assigning
that the district court erred in affirming the restitution compo-
nent of the county court’s sentence because there was insuffi-
cient evidence of actual damages to warrant the restitution and
because Street is not capable of paying the restitution ordered.
The Court of Appeals affirmed. 1 The Court of Appeals held
that the amount of the order of restitution was supported by
the evidence of the repair cost of the vehicle. Further, it held
that the county court’s determination that Street was capable of
paying $300 per month in restitution conformed to the law, was
supported by competent evidence, and was neither arbitrary,
capricious, nor unreasonable.
We granted Street’s petition for further review.
ASSIGNMENTS OF ERROR
On further review, Street assigns that the Court of Appeals
erred in finding no error in the district court’s affirmance of the
restitution component of the county court’s sentence because
(1) there was insufficient evidence of actual damages to war-
rant the restitution and (2) Street is not capable of paying the
restitution ordered.
STANDARD OF REVIEW
[1] The rule that a sentence will not be disturbed on appeal
absent an abuse of discretion is applied to the restitution por-
tion of a criminal sentence just as it is to any other part of the
sentence; 2 sentences within statutory limits will be disturbed by
an appellate court only if the sentence complained of was an
abuse of judicial discretion. 3
1
State v. Street, No. A-19-307, 2019 WL 7369234 (Neb. App. Dec. 31,
2019) (selected for posting to court website).
2
See State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020).
3
Id.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. STREET
Cite as 306 Neb. 380
ANALYSIS
[2,3] Restitution is purely statutory, and a court has no
power to issue such an order in the absence of enabling legis-
lation. 4 Restitution ordered by a court pursuant to § 29-2280
is a criminal penalty imposed as a punishment for a crime
and is part of the criminal sentence imposed by the sentenc-
ing court. 5
[4-6] Restitution, like any other part of the sentence, involves
discretion. 6 The appropriateness of an order of restitution is
necessarily a subjective judgment and not a mathematical
application of factors. 7 On appeal, we do not endeavor to
reform the trial court’s order. Rather, we review the record
made in the trial court for compliance with the statutory factors
that control restitution orders. 8
The rule that a sentence will not be disturbed on appeal
absent an abuse of discretion is applied to the restitution por-
tion of a criminal sentence just as it is to any other part of
the sentence. 9 A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
a just result in matters submitted for disposition. 10
Sections 29-2280 through 29-2289 govern a trial court’s
authority to order restitution for actual damages sustained by
the victim of a crime for which the defendant is convicted.
Section 29-2280 provides in relevant part that “[a] sentenc-
ing court may order the defendant to make restitution for the
actual physical injury or property damage or loss sustained by
4
State v. McMann, 4 Neb. Ct. App. 243, 541 N.W.2d 418 (1995).
5
State v. McCulley, supra note 2.
6
Id.
7
See id.
8
Id.
9
Id.
10
State v. Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).
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STATE v. STREET
Cite as 306 Neb. 380
the victim as a direct result of the offense for which the defend­
ant has been convicted.” (Emphasis supplied.)
Section 29-2281, in turn, provides in full:
To determine the amount of restitution, the court may
hold a hearing at the time of sentencing. The amount
of restitution shall be based on the actual damages
sustained by the victim and shall be supported by evi-
dence which shall become a part of the court record.
The court shall consider the defendant’s earning ability,
employment status, financial resources, and family or
other legal obligations and shall balance such considera­
tions against the obligation to the victim. In considering
the earning ability of a defendant who is sentenced to
imprisonment, the court may receive evidence of money
anticipated to be earned by the defendant during incar-
ceration. A person may not be granted or denied proba-
tion or parole either solely or primarily due to his or her
financial resources or ability or inability to pay restitu-
tion. The court may order that restitution be made imme-
diately, in specified installments, or within a specified
period of time not to exceed five years after the date of
judgment or defendant’s final release date from impris-
onment, whichever is later. Restitution payments shall
be made through the clerk of the court ordering restitu-
tion. The clerk shall maintain a record of all receipts
and disbursements.
(Emphasis supplied.)
Section 29-2282 elaborates in relevant part:
In determining restitution, if the offense results in
damage, destruction, or loss of property, the court may
require: (1) Return of the property to the victim, if pos-
sible; (2) payment of the reasonable value of repairing the
property, including property returned by the defendant;
or (3) payment of the reasonable replacement value of
the property, if return or repair is impossible, impractical,
or inadequate.
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STATE v. STREET
Cite as 306 Neb. 380
[7,8] Under these statutes, restitution is limited to the direct
loss resulting from that offense of which the defendant has
been convicted. 11 Under § 29-2281, before restitution can be
properly ordered, the trial court must consider (1) whether
restitution should be ordered, (2) the amount of actual dam-
ages sustained by the victim of a crime, and (3) the amount of
restitution a criminal defendant is capable of paying. 12
[9,10] In accordance with § 29-2281, the restitution “shall
be supported by evidence which shall become a part of the
court record,” but a sentencing court has broad discretion as
to the source and type of evidence and information that may
be used. 13 This evidence must provide meaningful informa-
tion from which the sentencing court can meaningfully con-
sider the various statutory factors set forth in §§ 29-2280
through 29-2289. 14
Actual Damages
Street asserts that without evidence of the market value of
the vehicle before he hit it, the sentencing court had insuffi-
cient evidence to determine that the repair cost of the vehicle
represented the “actual damages” and “actual . . . property
damage or loss.” 15 He further asserts that under § 29-2282,
the amount of restitution must correspond to the “reasonable
replacement value” of the property if repair is “impractical,”
and that the victim’s testimony the vehicle was “totaled” dem-
onstrated that repair was “impractical.” We disagree with these
arguments, and we find that the evidence of the repair costs
was meaningful information from which the court determined
11
See, State v. Escamilla, 237 Neb. 647, 467 N.W.2d 59 (1991); State v.
Kelly, 235 Neb. 997, 458 N.W.2d 255 (1990); State v. Arvizo, 233 Neb.
327, 444 N.W.2d 921 (1989).
12
State v. McCulley, supra note 2.
13
See id.
14
See id.
15
See §§ 29-2280 and 29-2281.
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STATE v. STREET
Cite as 306 Neb. 380
the amount of restitution and that the amount so ordered was
not an abuse of discretion.
[11,12] Penal statutes are to be given a strict construction
which is sensible. 16 In the absence of anything indicating to
the contrary, statutory language is to be given its plain and
ordinary meaning. 17 The terms “actual damages” or “actual
property damage or loss” are not defined by the restitution
statutes. We agree with the State that the plain and ordinary
meaning of “actual damages” or “actual property damage or
loss” does not require an assessment of the damaged prop-
erty’s prior fair market value when it can be repaired to its
former condition.
[13,14] “Actual damages” under criminal restitution statutes
are not governed by the strict rules of damages applicable
to civil cases. 18 Thus, for example, other jurisdictions have
rejected the contention that for the amount of the victim’s
medical expenses to be ordered as restitution, the State must
demonstrate the services were medically necessary or that the
amounts charged were reasonable. 19 Restitution for actual dam-
ages or actual loss are meant to make the victim whole 20 by
returning the victim to the position the victim was in before
the defendant’s actions. 21 Although at least one other jurisdic-
tion has held that restitution should not exceed the reasonable
market value of the property before the damage, 22 elsewhere it
has been held that compensation may include an amount over
16
See State v. Sundling, 248 Neb. 732, 538 N.W.2d 749 (1995).
17
See State v. Valentino, 305 Neb. 96, 939 N.W.2d 345 (2020).
18
See, e.g., People v. Johnson, 780 P.2d 504 (Colo. 1989).
19
Matter of J.R., 907 S.W.2d 107 (Tex. App. 1995). See, also, In re Doe, 146
Idaho 277, 192 P.3d 1101 (Idaho App. 2008).
20
See, e.g., Huml v. Vlazny, 293 Wis. 2d 169, 716 N.W.2d 807 (2006);
Tumlison v. State, 93 Ark. App. 91, 216 S.W.3d 620 (2005).
21
See State v. Anderson, 215 Wis. 2d 673, 573 N.W.2d 872 (Wis. App.
1997).
22
See State v. Casto, 22 Kan. App. 2d 152, 912 P.2d 772 (1996).
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and above the actual value of the interest that is the subject of
the case. 23
[15,16] Recently, in State v. McBride, 24 the Court of Appeals
rejected the argument that in relation to the fraudulent sale
of a vehicle, the sentencing court did not base its restitution
order on “actual damages” to the victim or the “reasonable
replacement value” of the fraudulently transferred property
when it utilized the purchase price of the vehicle purchased
5 months before without considering its depreciation. The
Court of Appeals reasoned that the restitution statutes “do not
specifically refer to depreciation or market value.” 25 “Nor do
the statutes address the manner in which actual damages are
to be calculated other than the amount of restitution must be
supported by evidence which shall become part of the court
record.” 26 This is true. And as we have said many times, the
intent of the Legislature may be found through its omission
of words from a statute as well as its inclusion of words in a
statute. 27 We are not permitted to read additional words into a
clear and unambiguous statute. 28
[17,18] Actual damages in restitution should be read in con-
junction with the more specific statute, § 29-2282. Components
of a series or collection of statutes pertaining to a certain
subject matter are in pari materia and should be conjunc-
tively considered and construed to determine the intent of the
Legislature, so that different provisions are consistent, har-
monious, and sensible. 29 And to the extent there is a conflict
between two statutes, the specific statute controls over the
23
See Tumlison v. State, supra note 20.
24
State v. McBride, 27 Neb. Ct. App. 219, 927 N.W.2d 842 (2019).
25
Id. at 227, 927 N.W.2d at 849.
26
Id.
27
Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723
(2016).
28
See id.
29
State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
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general statute. 30 While we do not find ambiguity or conflict, it
is apparent that the specifically listed options in § 29-2282 of
“(1) [r]eturn of the property to the victim, if possible; (2) pay-
ment of the reasonable value of repairing the property, includ-
ing property returned by the defendant; or (3) payment of the
reasonable replacement value of the property, if return or repair
is impossible, impractical, or inadequate,” all represent restitu-
tion for the victim’s “actual damages” or “actual property dam-
age or loss.”
[19] There is nothing in § 29-2282 indicative of a mandatory
tier system for these three options, given that the three options
listed are preceded by the word “may.” The word “may,” when
used in a statute, will be given its ordinary, permissive, and
discretionary meaning unless it would manifestly defeat the
statutory objective. 31 In the event that the property can be
found and has been damaged, the list indicates a discretionary
preference for return and repair of the property rather than pay-
ment of reasonable replacement value.
[20,21] Under the plain language of § 29-2282, reasonable
replacement value is the measure of restitution only “if return
or repair is impossible, impractical, or inadequate.” But we
disagree with Street’s contention that these terms are necessar-
ily bound by concepts of “fair market value”—which, again,
is found nowhere in the statutory scheme. The determina-
tion of whether return or repair is “impossible, impractical,
or inadequate,” like other sentencing factors, is left to the
sound discretion of the sentencing court. It is a matter within
the discretion of the sentencing court to determine the proper
measure of restitution in order to return the victim as much as
possible to the position the victim was in before the defend­
ant’s actions.
30
Id.
31
Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615
(2002), disapproved on other grounds, ML Manager v. Jensen, 287 Neb.
171, 842 N.W.2d 566 (2014).
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[22,23] Moreover, the State does not bear a strict burden of
proof with regard to restitution. 32 In reviewing restitution as
part of the sentence in a criminal case, the question is whether
there is competent evidence in the record, as opposed to mere
guess or conjecture, 33 which reasonably supports the court’s
calculation of the amount of the victim’s loss.
The evidence of the vehicle’s repair costs was competent
evidence supporting the court’s decision to assess restitution
in that amount. If Street had wished the court at sentencing
to consider instead the vehicle’s fair market value before the
crime as the amount of restitution, Street was free to pre­
sent evidence on the vehicle’s fair market value and make
that argument. 34
[24] Restitution will be upheld if calculated by use of rea-
sonable methods; therefore, when the defendant does not pre­
sent contradictory evidence, the court does not err in relying
on a victim’s competent estimates of loss. 35 We hold that the
county court’s determination that restitution should be in the
amount equal to the repair costs of the damaged vehicle was
not clearly untenable and did not unfairly deprive Street of a
substantial right or a just result. As such, neither the district
court nor the Court of Appeals erred in concluding that the
county court did not abuse its discretion in its calculation of
the amount of the victim’s “actual damages.”
Ability to Pay
[25] We next address Street’s argument that the county court
abused its discretion by ordering him to pay restitution in an
amount exceeding his ability to pay. We recently explained
in State v. McCulley 36 that ability to pay is not a necessary
32
See State v. Anderson, supra note 21.
33
See State v. Lucas, 234 N.C. App. 247, 758 S.E.2d 672 (2014).
34
See People v. Tidwell, 33 Ill. App. 3d 232, 338 N.E.2d 113 (1975).
35
See State v. McClelland, 381 Mont. 164, 357 P.3d 906 (2015).
36
State v. McCulley, supra note 2.
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prerequisite to an order of restitution for actual damages sus-
tained by the victim of a crime for which the defendant is
convicted. Under § 29-2281, ability to pay is a consideration
that the sentencing court must weigh against the defendant’s
obligations to the victim for the crime or crimes committed; 37
it is neither exclusive of other factors nor controlling of the
discretion of the court. 38
As we noted in McCulley, the weight accorded to ability
to pay in determining the amount of restitution at sentencing
is distinct from how it is treated in subsequent proceedings to
enforce compliance with a restitution order. Section 29-2284
describes the possible consequences for a defendant who has
been placed on probation or paroled and who failed to comply
with a restitution order, and it states that “[p]robation or parole
may not be revoked unless noncompliance with the restitution
order is attributable to an intentional refusal to obey the order
or a failure to make a good faith effort to comply with the
order.” Further, § 29-2285 allows the court to “adjust or waive
payment of the unpaid portion thereof or other restitution or
modify the time or method of making restitution,” if the court
finds that the “circumstances upon which it based the imposi-
tion or amount and method of payment or other restitution
ordered no longer exist or that it otherwise would be unjust to
require payment or other restitution as imposed.”
The county court endeavored to produce a payment plan
that the evidence indicated Street would be able to pay. Even if
we assume that Street is correct that he is unable to pay $300
per month in restitution, that fact does not render the court’s
order an abuse of discretion. We hold that the court did not
abuse its discretion in ordering restitution in the amount of
$10,347.70, reduced to approximately $9,000 upon the appli-
cation of bonds funds, to be paid at a rate of $300 per month.
Neither the district court nor the Court of Appeals erred in
37
See id.
38
See id.
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concluding that the county court did not abuse its discretion
in its consideration of Street’s ability to pay this sentence
of restitution.
Plain Error
[26,27] We do, however, find plain error in the county
court’s failure to specify in the written sentencing order, as it
did in its oral pronouncement, whether the restitution was to
be made immediately, in specified installments, or within a
specified period of time. The certainty and precision prescribed
for the criminal sentencing process applies to criminal sen-
tences containing restitution ordered pursuant to § 29-2280. 39
In imposing a sentence, the sentencing court should state with
care the precise terms of the sentence to be imposed. 40
[28,29] Plain error exists where there is an error, plainly
evident from the record but not complained of at trial, which
prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscar-
riage of justice or result in damage to the integrity, reputation,
and fairness of the judicial process. 41 In State v. Esch, 42 we
held that it is plain error for a sentence of restitution to fail to
specify whether the restitution is to be made immediately, in
specified installments, or within a specified period of time. 43
We explained that “although § 29-2281 offers options, one
option must be ordered.” 44
[30] We have also held that it is plain error if a written
judgment is not made to conform to the pronounced judg-
ment, and in such circumstances, we have modified the written
39
State v. Collins, 1 Neb. Ct. App. 596, 510 N.W.2d 330 (1993).
40
State v. Temple, 230 Neb. 624, 432 N.W.2d 818 (1988).
41
State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
42
State v. Esch, 290 Neb. 88, 858 N.W.2d 219 (2015).
43
See, also, State v. Mettenbrink, 3 Neb. Ct. App. 7, 520 N.W.2d 780 (1994);
State v. McGinnis, 2 Neb. Ct. App. 77, 507 N.W.2d 46 (1993).
44
State v. Esch, supra note 42, 290 Neb. at 97, 858 N.W.2d at 225.
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judgment to conform to the pronounced sentence. 45 A sen-
tence pronounced upon a defendant is controlling over a later
erroneous written sentence. 46
We accordingly remand the matter to the Court of Appeals
with directions to remand the matter to the district court with
directions to remand the matter to the county court with direc-
tions to conform Street’s sentence to reflect the county court’s
oral pronouncement.
CONCLUSION
For the foregoing reasons, we affirm the pronounced sen-
tence of restitution and remand the matter to the Court of
Appeals with directions to remand the matter to the district
court with directions to remand the matter to the county court
with directions to conform Street’s sentence to reflect the
county court’s oral pronouncement.
Affirmed and remanded with directions.
45
See State v. Thomas, 229 Neb. 635, 428 N.W.2d 221 (1988).
46
See, State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016); State v.
Thomas, supra note 45. See, also, State v. Newman, 300 Neb. 770, 916
N.W.2d 393 (2018).