This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Kathleen Elaine Svoboda,
Filed April 3, 2007
Reversed and remanded
Scott County District Court
File No. 70-2003-09663
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379-1220 (for respondent)
Richard L. Swanson, 207 Chestnut Street, Suite 235, P.O. Box 117, Chaska, MN 55318 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Collins, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant Kathleen Elaine Svoboda challenges the district court order requiring her to pay joint and several restitution for amounts owed to victims of crimes of which she was not convicted. We reverse and remand.
D E C I S I O N
Appellant pleaded guilty to two charges arising out of alleged criminal activities involving a used car business. Of a multi-count complaint, appellant pleaded guilty to one count of aggravated forgery and one count of title fraud. Appellant is one of four codefendants and each codefendant pleaded guilty to some but not all of the counts. The record indicates that the district court reserved setting restitution at the sentencing hearing.
Because appellant failed to properly request a restitution hearing, the district court did not address appellant’s challenge to the restitution order but ordered her to pay joint and several restitution, with her codefendants for the total amount requested, without regard to which defendant’s actions were responsible for which victim’s losses. Appellant argues that the district court erred in not allowing her to challenge the joint and several restitution, because ordering her to pay restitution to victims of crimes for which she was not convicted constitutes an illegal sentence.
An appellant has a statutory right
to a restitution hearing, but must properly invoke that right by following the statutory
procedure. “An offender may challenge
restitution, but must do so by requesting a hearing within 30 days of receiving
written notification of the amount of restitution requested, or within 30 days
of sentencing, whichever is later.”
But the holding in Thole does not preclude an appellant from challenging an illegal sentence. Minn. R. Crim. P. 27.03, subd. 9 (stating that an illegal sentence may be corrected at any time). Thus, we must determine whether appellant’s restitution order results in an illegal sentence.
Generally, a “victim” under the restitution
statute must be a “direct victim of the crime,” State v. Jones, 678 N.W.2d 1, 25 (
Here, appellant argues that the
joint and several restitution she is ordered to pay is neither the direct
result of her conduct nor an element of her plea agreement. We have held that a restitution order that
exceeds a defendant’s expectations may be improper. In State
v. Chapman, the appellant, pursuant to a plea agreement, pleaded guilty to
some counts and the remaining counts were dismissed. State
v. Chapman, 362 N.W.2d 401, 402 (Minn. App. 1985), review denied (Minn. May 1, 1985).
The district court ordered restitution on all counts and this court
reversed and remanded.
The facts here appear to be similar
to Chapman. But we are unable to determine from this
record whether appellant, at the time she entered her guilty plea, was advised
that she could be ordered to pay joint and several restitution for counts to
which she did not plead guilty. See State v. Anderson, 507 N.W.2d 245,
Reversed and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.