State v. Baxter, No. 93,024.
| Decision Date | 09 September 2005 |
| Docket Number | No. 93,024. |
| Citation | 118 P.3d 1291 |
| Parties | STATE of Kansas, Appellee, v. Johnny BAXTER, Appellant. |
| Court | Kansas Supreme Court |
Matthew J. Edge, assistant appellate defender, for appellant.
Ellen Mitchell, county attorney, and Phill Kline, attorney general, for appellee.
Before ELLIOTT, P.J., MALONE and McANANY, JJ.
Johnny Baxter and another man stole and later damaged and abandoned a Chevrolet van owned by Gateway Outdoor Advertising Company (Gateway). The van was used in Gateway's billboard advertising business. It was equipped with an aluminum scaffold and hooks used for installing advertisements on billboards. These items were missing when the van was recovered. Baxter pled guilty to theft and was sentenced to 12 months' probation, with an underlying sentence of 6 months in the county jail.
At a separate restitution hearing, Neil Phalen, a representative of Gateway, testified that he bought the scaffold in approximately 1990 for $800. The only company that manufactured the scaffold is no longer in business. Phalen testified that a welding company had stated it could fabricate a new scaffold for a cost of approximately $1,500 to $1,600. Phalen replaced his scaffold approximately every 20 years, but his inspection of this particular scaffold before the theft disclosed that it was in good condition. Phalen also claimed the scaffold was a unique tool.
Baxter objected to awarding Gateway the full replacement cost for the scaffold. The court ruled:
. . . .
The ultimate restitution order included the full replacement cost for the scaffold. Baxter now appeals from that order. Because the district court used the replacement value of the scaffold that was lost, rather than its current fair market value, we must set aside that portion of the restitution order relating to the scaffold and remand for further proceedings to determine an appropriate restitution order for its loss.
A sentencing court has wide discretion in ordering restitution and in selecting the manner in which it is calculated. The rigorous standards for proof of damages in a civil action do not apply in calculating an amount of restitution in a criminal case. Nevertheless, the victim is not entitled to restitution that exceeds the amount of the loss. See State v. Casto, 22 Kan.App.2d 152, 153-54, 912 P.2d 772 (1996). In calculating restitution for a loss involving personal property, the item's fair market value is the usual standard. State v. Rhodes, 31 Kan.App.2d 1040, Syl. ¶ 2, 77 P.3d 502 (2003). Kansas courts have consistently held that an award of restitution that exceeds fair market value constitutes an abuse of discretion. See, e.g., State v. Hunziker, 274 Kan. 655, 664, 56 P.3d 202 (2002); Rhodes, 31 Kan.App.2d at 1042-43, ...
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