may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Paul Joe Sazama,
Filed December 22, 1998
Affirmed as modified
Otter Tail District Court
File No. K6-96-2123
David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)
John M Stuart, State Public Defender, Dwayne A. Bryan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Amundson, Judge.
Appellant challenges the district court's restitution award arguing that there was no basis for the $500 out-of-pocket expenses claim, and that he was not credited the entire $894 he actually paid for the cows Hanson recovered. We affirm as modified.
In 1993, Paul Sazama purchased property from Ralph Twardowski described as, 15 head of Holstein dairy cows plus one half annual increase, on an installment plan creating monthly payments of $446.25 for 48 months. The "one half-annual increase" means that Twardowski should have received some benefit from the offspring of the 15 cows originally sold to Sazama. No offspring were ever mentioned to Twardowski and he received no benefit. In March 1996, Sazama stopped making payments and asked Twardowski to come pick up the cows, but when Twardowski arrived only one of the original fifteen cows remained.
During 1994 and 1995, Philip Hanson and Sazama entered into financing agreements for the sale of 27 cows. Under the terms of these agreements, heifer calves were to be retained and properly grown to their own reasonable capacity. In March 1996, Sazama stopped making payments. Hanson recovered possession of 17 cows, 15 cows covered by their security agreement and two additional cows not covered in the security agreement. Hanson sold the recovered cows and credited Sazama with the $6,500 he received. No explanation was ever made for the absence of the young stock that should have been produced by the cows in the agreement.
Under Minnesota law, upon conviction of a felony, a court may sentence the defendant "to payment of court-ordered restitution in addition to either imprisonment or payment of a fine, or both." Minn. Stat. § 609.10(5) (Supp. 1997). Restitution serves to both compensate the victim and rehabilitate the defendant. State v. Belfry, 416 N.W.2d 811, 813 (Minn. App. 1987). In determining whether to order restitution and the amount of restitution, the sentencing court shall consider the following factors:
the amount of economic loss sustained by the victim as a result of the offense; and
the income, resources, and obligations of the defendant.
Minn. Stat. § 611A.045, subd. 1 (Supp. 1997).
The sentencing court has broad discretion in ordering "reasonable" restitution. Because the district court is in the best position to weigh the various sentencing options, it is granted wide discretion in ordering reasonable restitution. Belfry, 416 N.W.2d at 813. The district court is also in the best position to weigh the various sentencing options. State v. O'Brien, 459 N.W.2d 131, 133 (Minn. App. 1990). Disputes as to the proper amount of restitution are to be resolved by the court by a preponderance of the evidence. Minn. Stat. § 611A.045, subd. 3 (1996).
Sazama argues that the district court should not have found that the two $750 checks Sazama paid Twardowski constituted a $1,500 down payment. He argues that this mistake unjustifiably increased his obligation to Twardowski because there was no mention of a down payment in the actual security agreement. However, the district court could reasonably find that the two $750 checks dated September 6, 1993 and September 15, 1993, paid at least 15 days before the first payment was due according to the security agreement, were meant as a down payment. This is especially true in light of the additional $446.25 payment Sazama made on September 25, 1993. It is reasonable, if not probable, that the $1,500 was a down payment and the 48 months of $446.25 payments were the remaining obligation for the 15 Holstein Dairy cows. The district court's decision is supported by a preponderance of the evidence, as required by statute.
Sazama also argued that $500 granted to Twardowski for out-of-pocket expenses was not supported by documentary evidence and therefore should not be added to the restitution award. The district court specifically found that the $500 was not in dispute.
In the district court's transcript, Twardowski's attorney asks him to justify the additional $500 claimed in his affidavit. Twardowski explains that the $500 is for trips, phone calls, and expenses relating to collection costs. However, on cross-examination Twardowski's replies demonstrate that there was a dispute as to the out-of-pocket expenses.
Q. You claim $500 for collection costs. Do you have any documentation of the mileage that you drove?
No, but that's - it should be closer to a thousand dollars probably for the mileage that I put on to come here -
Sir, do you have any documentation of the mileage that you drove?
I can figure it out, yes.
Do you have any documentation here today that indicates how you came up with the amount of that $500?
Nope, I don't have. How many times have I made the trip up here?
The district court erred in its determination that the $500 was undisputed by Sazama. Even if the $500 award was accurate, Twardowski would still be required to itemize with specificity, the dollar amount of the loss.
Information submitted relating to restitution must describe the items or elements of loss, itemize the total dollar amounts of restitution claimed, and specify the reasons justifying these amounts, if restitution is in the form of money or property. A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime,***.
Minn. Stat. § 611A.04, sudb. 1(a) (1996). While the district court has wide discretion in granting restitution, the record must provide a factual basis for an award. State v. Hanninen, 533 N.W.2d 660, 662 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995).
The district court erred in allowing the $500 out-of-pocket expenses to Twardowski. Because the amount was disputed and was not itemized, we reverse the $500 award to Twardowski.
Sazama claims that the district court erred by crediting him an average of only $361 for the 18 cows Hanson recovered. Sazama claims he paid approximately $894 per cow. However, Hanson explains that the reason for the low price for the 18 recovered cows is because the cows were in very poor health. Some were "all bashed up." Two of the animals, not covered by the security agreement, were sick; one died shortly after Hanson took it back, and the other needed surgery for a twisted stomach. Sazama requested that Hanson pick up the remainder of his cows on March 20, 1996, because Sazama "ran out of hay" to feed them. Included in the record are 14 receipts for dead animals ranging in date from January 1994 through April 1996. The district court specifically found that the credit of $6,500 for the 18 dairy cattle recovered was reasonable. We agree.
Restitution does not protect a party's contractual expectation, but rather, "Restitution is primarily intended to compensate a crime victim for his or her loss by restoring the victim to his or her original financial condition." State v. Terpstra, 546 N.W.2d 280, 283 (Minn. 1996). The preponderance of the evidence supports the district court's award of restitution in full to Hanson and to Twardowski for all but the $500 collection costs.
Affirmed as modified.