State v. Boothe

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1233
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Stokes County
Nos. 12 CRS 50761-66, 50768
CHARLES JUSTIN BOOTHE
Appeal by defendant from judgments entered 8 August 2013 by
Judge A. Moses Massey in Stokes County Superior Court. Heard in
the Court of Appeals 7 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
David L. Gore, III, for the State.
Jon W. Myers for defendant-appellant.
ELMORE, Judge.
On 10 October 2013, pursuant to a plea agreement, Charles
Justin Boothe (defendant) pleaded guilty to six counts of
breaking and/or entering a motor vehicle, one count of breaking
and/or entering, one count of possession of stolen goods, one
count of larceny of a motor vehicle, six counts of injury to
personal property, one count of injury to real property, and one
count of first-degree trespass. The charges were consolidated
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into two judgments and the trial court sentenced defendant to
consecutive active terms of eleven to twenty-three months
imprisonment and eight to nineteen months imprisonment. The
trial court also ordered defendant to pay restitution in the
amount of $4,500.00. Defendant gave notice of appeal in open
court.
On appeal, defendant argues the trial court erred in
ordering payment of a restitution amount not supported by
competent evidence. We agree.
“[T]he amount of restitution recommended by the trial court
must be supported by evidence adduced at trial or at
sentencing.” State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d
192, 196 (1995) (citation omitted). In the present case, the
prosecutor stated that the victims indicated “there’s 3,500 in
damages that’s not covered by insurance and they had a $1,000
deductible,” and “we’re looking at about $4,500 covering
restitution.” However, review of the record reveals that no
evidence was presented which supports the figure offered by the
State. This Court has held that the “[u]nsworn statements of a
prosecutor, standing alone, cannot support an award of
restitution.” State v. McNeil, 209 N.C. App. 654, 668, 707
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S.E.2d 674, 684 (2011) (citing State v. Buchanan, 108 N.C. App.
338, 341-42, 423 S.E.2d 819, 821 (1992)).
Further, the State’s argument that defendant’s silence or
lack of objection to the presentation of the restitution
worksheet constitutes a stipulation to the restitution amount is
without merit. See State v. Mauer, 202 N.C. App. 546, 552, 688
S.E.2d 774, 778 (2010) (holding defendant’s silence does not
constitute a stipulation to the amount of restitution).
Accordingly, the restitution portion of the judgment must be
vacated and remanded to the trial court for redetermination.
Remanded for redetermination of restitution.
Judges McGEE and DAVIS concur.
Report per Rule 30(e).