This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-98-2327

In the Matter of the Welfare of: A.K.R., Child.

Filed July 6, 1999

Reversed

Schumacher, Judge

Redwood County District Court

File No. J697501150

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

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michelle A. Dietrich, Redwood County Attorney, John H. Stechmann, Assistant County Attorney, Post Office Box 130, Redwood Falls, MN 56283 (for respondent State of Minnesota)

Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Parker, Judge.[*]

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant A.K.R. challenges the district court's restitution order, arguing that a victim's parents are not entitled to restitution and that their loss was not caused by the conduct for which A.K.R. was convicted. We reverse.

FACTS

A St. Peter police report describes a May 13, 1997, assault on S.V. at the Hoffman Center. G.A.K. hit S.V. five times with his fist, and A.K.R. threw a hackey sack that hit S.V. in the back. A citation in Nicollet County charged A.K.R. with disorderly conduct. A Nicollet County order transferred venue to Redwood County.

A.K.R. pleaded guilty in Redwood County to disorderly conduct and also fourth-degree criminal damage to property. On entering the plea, A.K.R. acknowledged screaming and shouting obscenities that disturbed, angered, and alarmed others around him and that he kicked a hole in a bedroom wall. A.K.R. was ordered pursuant to the plea agreement to pay restitution for the victim's out-of-pocket losses.

S.V.'s parents filed a restitution request seeking $1,469 for car repair and rental, mileage, hotel rooms, phone bills, meals, and lost wages. At a restitution hearing, S.V.'s mother explained that a $600 mileage request was for two round trips of 1,500 miles each from their home in North Dakota to Pipestone, Minnesota.

The district court found that A.K.R. had entered a guilty plea to disorderly conduct as a result of the physical assault on S.V. The district court ordered A.K.R. to pay restitution in the amount of $600. A.K.R. appeals from the denial of his motion to amend or vacate the restitution order.

D E C I S I O N

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

Minn. Stat. § 611A.04, subd. 1(a) (1996). The district court has wide discretion in granting restitution, but the record must provide a factual basis for an award. State v. Keehn, 554 N.W.2d 405, 408 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996). Deciding whether a particular item of restitution fits within the statutory definition is a question of law, fully reviewable by the appellate court. State v. Esler, 553 N.W.2d 61, 63-64 (Minn. App. 1996), review denied (Minn. Oct. 15, 1996).

A.K.R. argues that S.V.'s parents are not victims entitled to restitution under statute. The restitution statute defines victim as either a natural person or a corporation that incurs loss as a result of a crime. Minn. Stat. § 611A.01(b) (1996). Only the victim is entitled to restitution under the statute. Esler, 553 N.W.2d at 65. "If the victim is a natural person and is deceased, 'victim' means the deceased's surviving spouse or next of kin." Minn. Stat. § 611A.01(b). Accordingly, where a victim is not deceased, the term victim does not include the immediate family.

In this case, S.V.'s mother testified at the restitution hearing that S.V. was very upset after the assault, requiring his parents to travel to see him. These travel costs, however, are not out-of-pocket losses sustained by S.V. Indeed, nothing in the record suggests that S.V. sustained any out-of-pocket losses. We conclude the district court erred in this case in ordering A.K.R. to pay for a loss sustained by the victim's parents.

The state argues that ordering restitution not authorized by statute is permissible as a term of A.K.R.'s plea agreement. A voluntary plea agreement can permit restitution even when the recipient is not a victim under the statute. See State v. Wallace, 545 N.W.2d 674, 677 (Minn. App. 1996) (voluntary plea agreement permissible even though police task force not "victim" under statute), review denied (Minn. May 21, 1996). In this case, the plea agreement indicated that A.K.R. would pay restitution to victims for any out-of-pocket losses. Nowhere did the agreement refer to S.V., much less his parents. The only example of restitution mentioned is out-of-pocket costs associated with the kick in the wall. We conclude that the plea agreement does not contemplate payment of restitution to S.V.'s parents.

A.K.R. also argues that his disorderly conduct did not directly cause the loss to S.V.'s parents. Restitution is proper only for losses directly caused by the conduct for which a defendant was convicted. Esler, 553 N.W.2d at 65. Because we conclude that S.V.'s parents are not compensable victims under the statute or the plea agreement, we need not consider whether A.K.R.'s disorderly conduct directly caused their loss.

Reversed.

[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.