This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of the

Welfare of: R.A.R.

Filed October 28, 1997


Foley, Judge**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

Kandiyohi County District Court

File No. J0-96-50778

John M. Stuart, State Public Defender, Charlann Winking, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant R.A.R.)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Boyd Beccue, Kandiyohi County Attorney, 316 SW Fourth Street, Willmar, MN 56201 (for Respondent State of Minnesota)

Considered and decided by Huspeni, Presiding Judge, Amundson, Judge, and Foley, Judge.


FOLEY, Judge

Appellant challenges the trial court's restitution order. We reverse.


Appellant R.A.R., a juvenile, was charged by petition for first-degree burglary, second-degree burglary, and motor vehicle theft for two separate burglaries, and one motor vehicle theft that occurred on September 6, 1996. In one burglary, personal property was taken from the unoccupied Backlund home, and the Backlunds' automobile was stolen from the adjoining garage. The stolen automobile was damaged and abandoned. In the second burglary, two people broke into the occupied Rau family home, were discovered by a member of the Rau family, and then fled without stealing anything. In a statement to police, another juvenile linked R.A.R. to these crimes.

At R.A.R's trial on October 7, 1996, after a prosecution witness failed to appear, R.A.R. entered into a plea agreement in which he admitted to burglary in the first degree. The prosecution dropped the other two charges of burglary in the second degree and motor vehicle theft. The juvenile court examined R.A.R. and accepted his plea. On October 11, the juvenile court committed R.A.R. to detention, but stayed the commitment and placed him on indefinite probation with several conditions. Those conditions included a meeting with Mr. Rau and the Backlunds and submission of a five-page paper to the Backlunds.

On September 13, 1996, Ms. Backlund submitted a request for restitution. The request documented the damage done to the Backlunds' automobile and listed the personal property stolen during the burglary. On October 15, the county attorney filed a certificate of restitution in the amount of $5,446.05 against R.A.R. The certificate was signed and dated October 8, 1996, but was not filed until October 15, 1996. R.A.R.'s dispositional hearing was held on October 11, 1996. On October 20, 1996, counsel for R.A.R. requested that his disposition be modified to remove any conditions concerning the Backlunds because the charges relating to the Backlunds were dismissed. R.A.R. received notice of the restitution order on October 31, 1996. Counsel for R.A.R. then filed an additional motion requesting the court to hear R.A.R.'s challenge to the restitution order as well. On December 10, 1996, the court denied R.A.R.'s motions and ordered restitution in the amount of $396.98. This appeal followed.


As an initial matter, we note appellant's request for sanctions against respondent because of respondent's failure to file an appellate brief in this and other juvenile appeals. Minn. R. Civ. App. P. 142.03 states that "[i]f the respondent fails or neglects to serve and file its brief, the case shall be determined on the merits." Accordingly, we decline to impose sanctions and turn to the merits of the case.

"Trial courts have broad discretion to order dispositions authorized by statute in delinquency cases." In re Welfare of M.A.C., 455 N.W.2d 494, 498 (Minn. App. 1990). "Absent a clear abuse of discretion, a trial court's disposition will not be disturbed." Id.

"A trial court has wide discretion in ordering reasonable restitution." State v. Muller, 358 N.W.2d 72, 76 (Minn. App. 1984). But statutory construction is a question of law and thus fully reviewable. Hibbing Educ. Ass'n v. Public Employee Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). Regardless of its purpose, however, only the victim is entitled to receive restitution. State v. Harwell, 515 N.W.2d 105, 110. (Minn. App. 1994), review denied (Minn. June 15, 1994).

Minn. Stat. § 260.185, subd. 1(e) (1996) allows a juvenile court to order restitution as a part of a disposition. In juvenile cases where restitution is ordered, "section 260.185 should not be read in a vacuum but rather, should be read in conjunction with chapter 611A." In Re Welfare of D.D.G., 532 N.W.2d 279, 282 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).

R.A.R. argues that the juvenile court erred in ordering restitution for charges that were dismissed. We agree. In State v. Olson, 381 N.W.2d 899 (Minn. App. 1986), the appellant argued that restitution for stolen property was improper because, while he had been convicted of burglary, he was acquitted of the theft charge stemming from the same event. Id. at 900. In Olson, this court stated:

If appellant here had been convicted of burglary of the Rusty Nail and acquitted of theft involving a totally separate entity, we agree that restitution * * * to the second victim would be improper. But where the victim's losses are directly caused by appellant's conduct for which he was convicted there is nothing improper in ordering restitution.

Id. at 901. Although Olson concerned a situation where the defendant had been tried and acquitted of a related charge stemming from the same event, and the present case concerns a situation where the juvenile entered into a plea agreement in which charges were dismissed from a separate burglary, Olson's dicta is on point. R.A.R. pled guilty to the burglary of the Rau home. However, his involvement in the burglary of the Backlund home was never adjudicated. Thus, the juvenile court erred in ordering R.A.R. to pay restitution to the Backlunds.

The state relies on State v. Chapman, 362 N.W.2d 401, 404 (Minn. App. 1985), review denied (Minn. May 1, 1985). In Chapman, the trial court accepted a plea from the defendant that did not include restitution. The defendant, however, later offered to pay restitution and agreed to leave the issue of restitution to the trial court. The trial court then ordered restitution in an amount that exceeded the defendant's restitution offer by approximately $31,000. This court determined that the restitution order went beyond the terms of the plea bargain, stating:

Although some restitution was contemplated, we do not believe that a plea agreement, voluntarily and intelligently entered into, should include such a gamble on the amount of restitution.


In the present case, the juvenile court made a finding of fact that restitution had been discussed at the dispositional hearing and ordered R.A.R. to pay restitution to the Backlund family. However, the record of the dispositional hearing does not contain any reference to restitution. Further, R.A.R. did not suggest restitution, nor did the juvenile court reserve the issue of restitution. Thus, Chapman does not apply to the present case.

Only victims of a crime may receive restitution. Harwell, 515 N.W.2d at 110. Minn. Stat. § 611A.04 subd. 1(a) (1996) states:

A victim of a crime has the right to receive restitution as a part of the disposition of a criminal charge or juvenile delinquency proceeding if the offender is convicted or found delinquent.

R.A.R. argues that the Backlunds are not victims according to the statute because the charges concerning them were dismissed. We agree. R.A.R. pled guilty to burglary in the first degree for his participation in the burglary in the Rau home in exchange for the prosecution dropping the charge of burglary in the second degree concerning the Backlund home and the motor vehicle theft charge. The juvenile court ordered restitution based on the Backlunds' certificate of restitution documenting damage to their home and automobile. There is no reference to or documentation of damages suffered by the Raus in the record. The Backlunds are not victims according to Minn. Stat. § 611A.04 subd. 1(a) because R.A.R.'s involvement in the charges relating to the Backlunds was never adjudicated. Thus, the juvenile court erred in ordering restitution from R.A.R. for damages suffered by the Backlunds.

Additionally, we note that the juvenile court is subject to certain limitations in ordering restitution. "[G]enerally it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced." State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984). However, when the defendant denies the underlying conduct, the court may not consider it. State v. Womack, 319 N.W.2d 17, 19 (Minn. 1982). In Womack, the supreme court found that the trial court erred when it relied on the defendant's overall course of conduct in its sentencing decision because the defendant had denied the underlying conduct.

Defendant had a right to have a jury determine his guilt or innocence of that charge. He gave up that right only on condition that the charge would be dismissed in exchange for his guilty plea to the possession change. It is one thing for the sentencing court to look at the conduct underlying the offense to which the defendant pled guilty if the defendant admits that the underlying conduct occurred, but it is quite another thing when the defendant denies that such conduct occurred.


During questioning by the judge at his dispositional hearing, R.A.R. denied all involvement in the dismissed charges of burglary and motor vehicle theft. The juvenile court appears to have based its restitution order on the belief of R.A.R.'s involvement in the dismissed charges. Because R.A.R. denied involvement in the dismissed charges, Womack does not permit the juvenile court to consider the dismissed charges. The juvenile court, therefore, erred in considering R.A.R.'s conduct relating to the dismissed charges.