State v. Wolff
| Decision Date | 30 November 1988 |
| Docket Number | No. 16097,16097 |
| Citation | 438 N.W.2d 199 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Robert Allen WOLFF, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Richard D. Coit, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.
Frank A. Bettmann of Bettman & Feehan, P.C., Rapid City, for defendant and appellant.
This is a case of first impression in South Dakota.
For purposes of clarity and convenience, we shall refer to Defendant/Appellant Robert Allen Wolff as Wolff. He was originally charged with two counts of attempted removal of property subject to security interest (SDCL 44-1-12) in Pennington County. The property described in the complaint was an Admiral freezer and a Hitachi television set. On October 29, 1987, three days after the initial complaint was filed, an amended complaint was filed charging Wolff with two counts of theft by embezzlement of property received in trust and one count of grand theft. A three- count criminal Information, alleging two counts of theft by embezzlement of property received in trust and one count of grand theft, and a Part II Information, alleging that Wolff was a habitual offender with four prior felony convictions, were filed on November 25, 1987. On December 21, 1987, an amended Information Part II was filed, alleging only two prior felonies. The prosecutor dismissed Counts II and III of the criminal Information and separate NSF check charges pursuant to a plea bargain. Wolff was convicted of theft by embezzlement of property received in trust and adjudicated an habitual offender. The trial court sentenced Wolff to thirteen years in the State Penitentiary, and ordered him to pay $15,550.40 in restitution to his victims (exact amount of NSF checks issued to fourteen different businesses). Wolff's appeal is from the judgment and sentence, specifically challenging that portion of his sentence requiring restitution in the amount of $15,550.40. He alleges four trial errors by the trial court:
1) The trial court lacked authority to order restitution, together with a Penitentiary term where no probation or suspension of sentence was ordered;
2) The trial court violated due process by ordering restitution for offenses which Wolff did not admit and for which he was not convicted;
3) Procedures outlined in SDCL ch. 23A-28 were not followed; and
4) Seizure of his property for sale, the proceeds of which were to be applied toward restitution, constituted a forfeiture in violation of SDCL 23A-27-2.
We reverse the restitutional aspect of the sentence, and remand for resentencing on the restitution for failure to observe due process requirements; the conviction and thirteen-year sentence is not set aside.
On October 25, 1987, at 9:30 p.m., Dan Peterson, an investigator for the Rapid City Police Department, arrived at Mr. Wolff's place of business to investigate possible fraud involving a $5,700 check issued by Wolff. The business in possession of the check reported that its personnel had seen Wolff loading property into a U-Haul truck, and was concerned that he might be skipping out on his debts. Such proved to be the case. Peterson discovered that Wolff had loaded three vehicles with property he had acquired purportedly for use in a new business he was opening. Wolff's home and business were stripped of most moveable property items. Wolff explained that he was taking some locally rented items with him to Colorado for safekeeping, as he feared his home would be broken into. Investigation revealed $15,550.40 in NSF checks. Wolff entered into a plea bargain by which a potential life sentence and $25,000 in fines was eventually reduced to $15,550.40 in restitution, and thirteen years (of a possible fifteen years under the charges pleaded to) imprisonment in the Penitentiary. He admitted, specifically, only the charges in Count I, to which he pleaded guilty. He stated, generally, that he had been in debt and tried to leave town until he could repay the debts.
Wolff first argues that there is no statutory authority for sentencing courts to order restitution when a defendant is sentenced to the penitentiary and receives neither a suspended sentence, suspended imposition of sentence, probation, nor a sentence to be served in county jail, pursuant to SDCL 23A-28-3. 1 We disagree. A statute must be construed according to its intent, which must be determined from the statute as a whole, as well as enactments relating to the same subject. In re Appeal of AT & T Information Systems, 405 N.W.2d 24, 27 (S.D.1987). Read together, the statutes concerning restitution in criminal cases establish a restitutional scheme which is broader than that envisioned in Wolff's argument.
Statutes on restitution in criminal cases appear in SDCL chs. 22-6, 23A-27, and 23A-28, which are respectively titled: "Authorized Punishments," "Sentence and Judgment," and "Restitution to Victims of Crime." SDCL 22-6-1 authorizes courts, in addition to sentence imposed, to order a defendant found guilty of a felony to "make restitution to any victim in accordance with the provisions of chapter 23A-28." 2 SDCL 23A-27-1 also provides that courts, in imposing sentence, "shall enter an order of restitution in accordance with chapter 23A-28." Turning to SDCL ch. 23A-28, we find that "[i]t is the policy of this state that restitution may be made by each violator of the criminal laws to the victims of his criminal activities to the extent that the violator is reasonably able to do so...." SDCL 23A-28-1. SDCL §§ 23A-28-5 and -6 detail procedures regarding plans of restitution for defendants serving in the penitentiary. We hold these statutes to be indicative of legislative intent to authorize courts to order restitution regardless of the form a particular sentence may take, and generally agree with the following analysis:
Some judges had viewed restitution and incarceration as mutually exclusive alternatives. Responding to the hesitancy of the judiciary to order restitution in conjunction with incarceration, the South Dakota Legislature passed SDCL sections 22-6-1 and 22-6-2. According to those laws, the court could order that the defendant make restitution in addition to the sentence that was imposed, including imprisonment. This freed restitution from the historical province of probation under section 23A-28-3. It also heightened restitution to a status commensurate to or above that held by the conventional punitive sanctions of imprisonment and fines.
Crime and Punishment: The Propriety and Effect of South Dakota's Victim Restitution Legislation, 31 S.D.L.Rev. 783, 785 (1986) (footnotes omitted). This is consistent with other jurisdictions which allow restitution in conjunction with imprisonment. See Commonwealth v. Reed, 374 Pa.Super. 510, 543 A.2d 587 (1988); Eatherton v. State, 761 P.2d 91 (Wyo.1988).
We reject Wolff's argument that 1987 amendments to SDCL ch. 23A-28 (see 1987 S.D.Sess.L. ch. 179) deprived courts of authority to order defendants imprisoned in the penitentiary to make restitution. The amendments referred to by Wolff concern allocation of responsibility for preparation of plans of restitution, not authority to order restitution in the first place. For those persons serving time in the State Penitentiary, the Board of Pardons and Paroles has the responsibility of preparing and administering plans of restitution. SDCL 23A-28-5.
PROCESS VIOLATION)
The trial court ordered Wolff to make restitution for $15,550.40 in NSF checks, although the sole criminal count he actually pleaded guilty to was theft by embezzlement of property received in trust. This consisted of two television sets, one disk player, one stereo, and two freezers, of a value exceeding $200. We note, in the presentence report, that no less than fourteen different businesses were reported as victimized by Wolff's NSF checks, in a total amount of $15,550.40. These NSF charges were not prosecuted as a result of Wolff's plea bargain. Wolff admitted that he tried to run out on his obligations and Crucially, there is no indication that he admitted passing the individual bad checks for which the $15,550.40 restitution was ordered. As expressed in State v. West, 320 N.W.2d 570, 574-75 (Iowa 1982), Wolff did not specifically admit all of the criminal acts.
At his plea hearing, Wolff told the court:
I got into a bind and in debt over my head and I was hoping to do enough business on that Saturday and Sunday, and deposit enough money Monday, and make everything good and Saturday and Sunday came around and the business didn't look good and I got scared Sunday night because of the debt that I was in and knowing what I was going to face Monday, and got scared and loaded up what I could and left.
This statement is general in nature. The trial court examined him only with regard to the specific property involved in Count I. The trial court also did not address the matter of restitution in any form at the plea hearing. Wolff was not, apparently, informed that he would be liable for the NSF checks if he pleaded guilty to Count I of the Information. The penalties discussed were imprisonment, not restitution. We therefore hold that his due process rights, guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution and Article VI, § 2, of the South Dakota Constitution, were violated.
In context of a plea bargain in conjunction with probation, the Eighth...
To continue reading
Request your trial
-
State v. Mulligan
...(reversing an order requiring restitution for crimes that the defendant was not convicted of and did not admit); State v. Wolff, 438 N.W.2d 199, 201-02 (S.D.1989) (reversing restitution order of [¶ 50.] SDCL 23A-28-2(4) defines restitution as "full or partial payment of pecuniary damages to......
-
Bult v. Leapley
...officer would be a great aid to the sentencing judge to arrive at a plausible legal conclusion. Under the dictate of State v. Wolff, 438 N.W.2d 199 (S.D.1989), a restitutional hearing must be held with due process requirements fulfilled. In State v. Reed, 451 N.W.2d 409, 411 (S.D.1990), thi......
-
State v. Tuttle
...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 th......
-
State v. Holsing, 24334.
...comply with due process protection "by informing the defendant of the restitution he faced at the time of sentencing." State v. Wolff, 438 N.W.2d 199, 202 (S.D.1989). Allowing the State to bring Holsing back into court for the purpose of increasing restitution seven years after he was sente......