Nemecek (Barbara) v. State ( 2013 )

 on numbers provided by the victim, the Division recommended that
Nemecek pay $125,230.35 in restitution.
At the sentencing hearing, Nemecek objected to the restitution
request and asked that the State "be required to prove it as opposed to
[the district court] just taking their word for it." Nemecek also challenged
the manner in which the requested restitution amount was calculated,
arguing that the victim was "double counting the money." The victim
testified at the sentencing hearing that he "went back as far as four years"
and determined that Nemecek embezzled over $200,000 from his
company, but no documentation was provided by the victim or the State to
support the claim. When asked by defense counsel if he supplied the
numbers and information to the investigating officers while the case was
pending, the victim replied:
Yes, we did turn in, I think he said he had a
record of up to hundred something thousand, but
could only find [$153,000 in the documents we
gave him. He couldn't find the other in the
documents we gave him. They are somewhere.
We could probably come up with them if we tried
hard enough.
We conclude that the district court abused its discretion by
imposing restitution in the amount of $125,230.35. See Igbinovia v. State,
111 Nev. 699, 707, 895 P.2d 1304, 1309 (1995) (the district court's
imposition of a condition of probation is reviewed for an abuse of
discretion); see also Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582,
585 (2005) ("An abuse of discretion occurs if the district court's decision is
arbitrary or capricious or if it exceeds the bounds of law or reason."
(internal quotations omitted)). The State failed to provide substantial
evidence or a sufficient factual basis to support the amount awarded in
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excess of the agreed-upon figure of $53,958.35; therefore, we vacate the
restitution award and remand the matter to the district court with
instructions to conduct a restitution hearing. Accordingly, we
ORDER the judgment of conviction AFFIRMED IN PART
AND VACATED IN PART AND REMAND this matter to the district court
for proceedings consistent with this order.
J.
Hardesty
TP
Parraguirre
t
Cherry
cc: Hon. Scott N. Freeman, District Judge
David Kalo Neidert
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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