State v. Tuttle

Citation460 N.W.2d 157
Decision Date11 January 1990
Docket NumberNo. 16642,16642
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Warren A. TUTTLE, Defendant and Appellant. . Considered on Briefs
CourtSupreme Court of South Dakota

Page 157

460 N.W.2d 157
STATE of South Dakota, Plaintiff and Appellee,
Warren A. TUTTLE, Defendant and Appellant.
No. 16642.
Supreme Court of South Dakota.
Considered on Briefs Jan. 11, 1990.
Decided Aug. 22, 1990.

Ann C. Meyer, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., on brief.

David R. Wurm, Public Defender of Pennington County, Rapid City, for defendant and appellant.

SABERS, Justice.

As part of a plea agreement, Warren Tuttle (Tuttle) pled guilty to one count of second degree arson and a second count of arson was dismissed. Tuttle was sentenced to fourteen years in the State Penitentiary, with two years suspended on condition that Tuttle make restitution to the victims of both arsons. Although specifically requested by Tuttle, the trial court did not conduct a hearing regarding restitution. We reverse the restitution portion of Tuttle's sentence and remand the matter to the trial court for further proceedings in conformity with this opinion.


On December 23, 1988, a fire occurred at a trailer owned by Mike Powell (Powell) and rented by Wayne Lewis (Lewis). A second fire occurred on December 24, 1988, in a trailer owned by Myrl Pawlowski (Pawlowski) and rented by Tammy Brooks (Brooks). Tuttle was charged with two counts of second degree arson in connection with the fires and a public defender was appointed to handle his defense. At arraignment, the trial court granted Tuttle's request for a continuance to consider a proposed plea bargain. On January 20, 1989, Tuttle entered a guilty plea to one count of second degree arson. In return for his guilty plea, the State agreed to dismiss the other arson charge and to forego prosecution on a burglary charge and a potential habitual offender charge. Restitution and sentencing were not part of the plea agreement and restitution was not mentioned at the plea hearing.

Following the plea hearing, Tuttle wrote to the trial court and offered to "make payments for restitution" if he were given probation. A presentence report was completed which included a verbatim statement by Tuttle admitting to both arsons.

At sentencing, the trial judge specifically noted that Tuttle had written to the court offering to make restitution. Tuttle objected only to the amount of the State's restitution request and requested a hearing on restitution. The court did not grant a separate hearing, but rather proceeded with and completed sentencing that day, March 10, 1989. Tuttle was sentenced to fourteen years in the state penitentiary with two years suspended on certain conditions, including

Page 159

restitution to the victims. Tuttle was ordered to pay: $250 to Powell; $1365 to Pawlowski; and, $400 to Brooks. These amounts are the exact amounts recommended in the Victim's Assistance Report prepared by the Victim's Assistant of Pennington County, except that the court did not require Tuttle to reimburse Powell's insurance company.

On April 3, 1989, Tuttle filed a motion to reduce restitution as a result of our March 22, 1989 ruling in State v. Wolff, 438 N.W.2d 199 (S.D.1989). At a hearing on May 1, 1989, the trial court denied the motion for reduction of restitution. Tuttle filed this appeal arguing that the trial court erred in imposing restitution without a hearing and in requiring that Tuttle pay restitution for crimes to which he did not plead guilty.


We have previously held that a defendant is entitled to be informed at the plea hearing that restitution may be imposed as part of the sentence. State v. Wolff, 438 N.W.2d 199 (S.D.1989). * In a recent opinion, State v. Wilson, 459 N.W.2d 457 (S.D.1990) we lengthened our discussion of that requirement, first enunciated in Wolff.

In this case we lengthen our discussion concerning what type of restitution hearing constitutes due process. We hold that a hearing on restitution is necessary because "due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113, 118 (1971). At the restitution hearing, the defendant is entitled to confront witnesses against him, but the rules of evidence and civil burden of proof do not apply. We also believe it is appropriate that the trial court enter written findings of fact in support of any order of restitution. See SDCL 15-6-52(a). See also Renfro v. State, 785 P.2d 491, 495 (Wyo.1990).


Application of restitution statutes has not been trouble free in this state or other states. It has been suggested that attorneys tend to perceive restitution as a civil remedy and, consequently, expect that all of the procedural requirements of civil law should be applied. See e.g. Note, Victim Restitution In The Criminal Process: A Procedural Analysis, 97 Harv.L.Rev. 931, 932 (1984) (hereinafter "Victim Restitution"). Likewise, Tuttle argues that the imposition of restitution requires, as in traditional civil cases, a full jury trial. This argument has been adopted by some states. See e.g. United States v. Welden, 568 F.Supp. 516 (N.D.Ala.1983) rev'd...

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22 cases
  • State v. Willis, A16-0275
    • United States
    • Supreme Court of Minnesota (US)
    • July 12, 2017
    ...for greater procedural protection," because "[a]ll forms of sentencing require the court to consider new evidence." State v. Tuttle , 460 N.W.2d 157, 160 (S.D. 1990) (emphasis added).Finally, the majority's misinterpretation of Minn. R. Evid. 1101(b) results in unreasonable consequences for......
  • Burgard v. Benedictine Living Communities, 22994.
    • United States
    • Supreme Court of South Dakota
    • April 28, 2004
    ...this case. However, application of selective prospectivity has already been rejected in the criminal context, see e.g. State v. Tuttle, 460 N.W.2d 157,159 (1990) (citing Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)), and we have not endorsed it in the civil conte......
  • State v. Hauge, 28630
    • United States
    • Supreme Court of South Dakota
    • July 24, 2019
    ..."object[s] to the amount of restitution requested[,]" he is entitled to "a hearing to determine the proper amount[.]" State v. Tuttle , 460 N.W.2d 157, 160 (S.D. 1990). [¶29.] At his arraignment, Hauge was advised that, if convicted, he could be required to pay restitution. When Hauge and h......
  • State v. Hofer, 24718.
    • United States
    • Supreme Court of South Dakota
    • November 12, 2008
    ...vehicles recovered by the Bank. We have held that it is appropriate for the circuit court to enter such findings, see State v. Tuttle, 460 N.W.2d 157, 159 (S.D.1990), and we have remanded cases to the circuit court for entry of findings in this regard when absent. See Martin, 2006 SD 106, ¶......
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