State v. Kennedy, 82-188.

• Decision Date: 10 December 1982
• Docket Number: No. 82-188.,82-188.
• Parties: STATE of Minnesota, Respondent, v. Richard J. KENNEDY, petitioner, Appellant.
• Court: Minnesota Supreme Court

327 N.W.2d 3 (1982)

STATE of Minnesota, Respondent, v. Richard J. KENNEDY, petitioner, Appellant.

No. 82-188.

Supreme Court of Minnesota.

December 10, 1982.

Lommen, Nelson, Sullivan & Cole, Phillip A. Cole and Daniel J. Buivid, Jr., Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief, Appellate Div., Thomas A. Weist, Rick Osborne, Asst. County Attys., and Beverly J. Wolfe, Law Clerk, Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.

PETERSON, Justice.

This is an appeal by a criminal defendant from a postconviction order of the district court interpreting a condition of probation requiring that defendant pay restitution based on the losses of all the victims of his underlying criminal scheme, not just the victims named in the counts to which defendant pleaded guilty. We affirm.

Defendant was charged in January of 1978 with 32 felony counts of theft and securities law violations resulting from his participation in a land and securities swindle that bilked 724 individuals of a large amount of money in a total of 437 individual transactions. The 32 counts involved only 26 of the 724 victims. In May of 1978, following negotiations by his attorney and the prosecutor, defendant pleaded guilty to three of those counts, involving 24 of the 26 victims mentioned in the various counts. At the time he entered his plea, the plea agreement was placed on the record. Specifically, it appears that in exchange for defendant's guilty pleas, the state agreed to dismiss the 29 remaining counts and agreed not to charge defendant in connection with the defrauding of the other victims. The state also agreed to recommend concurrent 5-year prison terms, with execution of sentence stayed and defendant placed on probation for 5 years, probation being conditioned upon, among other things, defendant serving 1 year in the workhouse, making restitution, and providing the court with relevant financial documents.

Although the record made at the time the pleas were entered does not indicate what the parties contemplated when they used the word "restitution," it became clear at the sentencing hearing that what was contemplated was reasonable restitution based not just on the losses of the parties named in the three counts but on the losses of all the victims of defendant's criminal scheme.

Three years later, in December of 1981, a hearing was held on defendant's proposal that he be put on unsupervised probation and be allowed to pay $15,000 in full satisfaction of his obligation to make restitution. In connection with the hearing, defendant's attorney argued that the maximum that petitioner could be forced to pay was $23,100, the amount he says was actually lost by the victims of the three charges to which defendant pleaded guilty. The state, however, contended that the amount of restitution should be based on the losses of all the...