This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,


Brandon Emord Stark,



Filed July 6, 2004

Reversed and remanded

Peterson, Judge


Aitkin County District Court

File No. K102603



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and



Thomas F. Murtha, Aitkin County Attorney, Lisa R. Rakotz, Senior Assistant County Attorney, 217 Second Street Northwest, Aitkin, MN  56431 (for respondent)



John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from a sentence imposed for second-degree assault, appellant Brandon Emord Stark argues that the district court abused its discretion in ordering him to pay restitution for repairs done on a vehicle that he had forcefully taken.  Appellant argues that there was no factual basis for the award because there was no evidence that appellant damaged the vehicle, which he drove only for an hour, and the vehicle repairs were done a month-and-a-half after the offense.  We reverse and remand.


            On August 16, 2002, appellant forcefully took a van that belonged to Leonard Bauer.  Police apprehended appellant driving the van about one hour later.  As a result of the incident, appellant was charged by complaint with one count each of first-degree aggravated robbery, second-degree assault, and theft of a motor vehicle.  Appellant pleaded guilty to one count of second-degree assault, and the remaining charges were dismissed.

            Bauer submitted an affidavit of restitution claiming that he incurred $688.66 in damages as a result of the theft of his van.  He submitted a bill dated October 3, 2002, showing that a wheel bearing, axle, and outer tie-rod end were replaced and that the cost of the repair was $688.66.  At sentencing, the district court ordered appellant to pay $688.66 in restitution.

            Appellant submitted an affidavit disputing the amount of restitution.  In the affidavit, appellant stated, “I did not do any damage to the rear axle of Mr. Bauer’s van and should not have to pay any restitution regarding that rear axle.  The crime in question had nothing to do with damage to the van’s rear axle.”

            At a hearing on May 7, 2003, appellant sought to be allowed to withdraw his plea, be appointed a new public defender, and suspend his obligation to pay restitution.  Also, at the May 7 hearing, appellant denied damaging the van.  He stated that he only drove the van for about one hour and that he did not have an accident with it.  Defense counsel pointed out that the repair bill was dated October 3, which was almost two months after the theft, and that the van had 193,131 miles on the odometer.

            Following the hearing, the district court issued an order concluding:

Clearly a Defendant has a right to challenge restitution determinations.  This right does not allow general challenges to the reasonableness of the determination – rather specific facts or “reasons justifying dollar amount . . . which differ from the amounts requested by the victim” with a “detailed sworn affidavit setting forth all challenges.”  Minn. Stat. § 611A.045, Subd. 3.


            [Appellant’s] challenges at this time are generalized, speculative, and without support factually, and as such [appellant] is not now entitled to a hearing.



            Statutory interpretation is a question of law subject to de novo review.  Schumacher v. Ihrke, 469 N.W.2d 329, 332 (Minn. App. 1991).  The object of statutory interpretation is to determine and give effect to the legislature’s intent.  Minn. Stat. § 645.16 (2002).  The restitution statute states:

At the . . . hearing on the restitution request, the offender shall have the burden to produce evidence if the offender intends to challenge the amount of restitution or specific items of restitution or their dollar amounts.  This burden of production must include a detailed sworn affidavit of the offender setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying dollar amounts of restitution which differ from the amounts requested by the victim or victims.  . . . A dispute as to the proper amount or type of restitution must be resolved by the court by the preponderance of the evidence.  The burden of demonstrating the amount of loss sustained by a victim as a result of the offense and the appropriateness of a particular type of restitution is on the prosecution.


Minn. Stat. § 611A.045, subd. 3(a) (2002).

            Minn. Stat. § 611A.045, subd. 3(a),

imposes two burdens on the offender:  The burden of pleading and the burden of production.  Under the statute, the affidavit is both the sole vehicle by which the offender can meet the burden of pleading, and an essential element of the offender’s case required to meet the burden of production.  The requirement that the offender fully plead his or her position in the affidavit is further illustrated by the legislature’s insistence that the affidavit be “detailed.”   Once an offender raises a proper challenge to the restitution order, the prosecution bears the burden of proving the propriety of the restitution by a preponderance of the evidence.


. . . .


            Under the plain language of the statute, a valid dispute arises only after an offender meets the threshold burden of raising a specific objection by affidavit.  Until a dispute exists, the district court need not determine whether restitution is justified by a preponderance of the evidence . . .  .


State v. Thole, 614 N.W.2d 231, 235 (Minn. App. 2000).

            The state argues that under Thole, appellant’s affidavit was insufficient to satisfy the requirements of Minn. Stat. § 611A.045, subd. 3(a).  In Thole, the district court awarded the victim restitution for damages to her vehicle, specified items of personal property, and costs incurred as a result of the crime.  Thole, 614 N.W.2d at 234.  In his motion to vacate the restitution order, the defendant in Thole stated “that he was contesting ‘the appropriateness of the restitution in its entirety with respect to the vehicle that was alleged to have been stolen in this matter,’” and, in his accompanying affidavit, he “stated that he had not damaged the vehicle other than normal wear.”  Id. at 235.  “He did not object to any other element of the restitution order.”  Id.  At the restitution hearing, the district court refused to consider defendant’s objections to any aspect of the restitution award other than the vehicle’s value because he had not raised them with specificity in his motion and affidavit.  Id. at 234.  On appeal, defendant conceded that he failed to raise with specificity objections to items other than the vehicle but argued that this court should review the restitution order under the plain-error doctrine.  Id. at 235.  After rejecting defendant’s plain-error argument, this court stated that “the district court's ruling was not in error, but was instead consistent with the plain language of Minn. Stat. § 611A.045, subd. 3.”  Id. at 236.

            Appellant’s affidavit states, “I did not do any damage to the rear axle of Mr. Bauer’s van and should not have to pay any restitution regarding that rear axle.  The crime in question had nothing to do with damage to the van’s rear axle.”  With respect to rear-axle damage, appellant’s affidavit is substantively indistinguishable from the affidavit in Thole.  Under Thole and the plain language of Minn. Stat. § 611A.045, subd. 3(a), appellant’s claim that he did no damage to the van’s rear axle is sufficient to properly challenge the restitution award.  Once appellant raised a proper challenge to the restitution award, the burden shifted to the state to prove by a preponderance of the evidence that restitution was proper.  Therefore, the district court erred in concluding that appellant’s affidavit was insufficient under Minn. Stat. § 611A.045, subd. 3(a), and denying his motion on that basis.  We, therefore, reverse the district court’s determination that appellant is not entitled to a restitution hearing and remand for a hearing where the prosecution will have the burden of demonstrating the amount of loss sustained by Bauer as a result of appellant’s offense and the appropriateness of a restitution award.

            Reversed and remanded.