Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.[*]

Thomas Henry Joyce appeals from his conviction for first- and third-degree criminal sexual conduct, arguing (1) his due process rights were violated when the state amended its complaint after he rejected the state's plea offer, and (2) the trial court erred by ordering him to pay restitution. We affirm in part, reverse in part, and remand.

Joyce took the keys to J.M.'s car and gave her a ride home. He had a knife, and as he drove, he held her down on the floor of the car. He crashed into another car, but kept going. Before reaching J.M.'s home, Joyce stopped the car and ran away.

On June 8, 1990, Joyce was charged with third-degree criminal sexual conduct. He rejected the state's proposal for a plea agreement. The complaint was then amended, and charges of first-degree criminal sexual conduct and third-degree assault were added.

Joyce failed to appear for trial. He was arrested in Oklahoma more than four years later under an alias and was extradited to Minnesota. A second amended complaint added a kidnapping charge. Before the jury trial concluded, the state dismissed the third-degree assault charge, and the trial court dismissed the kidnapping charge. The jury found Joyce guilty of first- and third-degree criminal sexual conduct. He was sentenced to the presumptive term of 115 months. The court also ordered Joyce to pay restitution of $7,500 to cover the portion of J.M.'s medical bills not paid by insurance.

Prosecutors have discretion in deciding which of multiple possible charges to bring against a defendant. United States v. Partyka, 561 F.2d 118, 124 (8th Cir. 1977), cert. denied, 434 U.S. 1037 (1978). Our supreme court has stated that

[u]nder Minn. R. Crim. P. 3.04, subd. 2, the trial court is relatively free to permit amendments to charge additional offenses before trial is commenced, provided the trial court allows continuances where needed.

State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990). Joyce's reliance on Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663 (1978), is misplaced. In Bordenkircher, the Court held that due process was not violated when, after the accused did not make a plea agreement, the state carried out a threat made during plea negotiations to have him reindicted on other charges. 434 U.S. at 360-65, 98 S. Ct. at 666-69. The Bordenkircher Court did not hold that an accused must be explicitly informed of all possible charges against him at the time of plea negotiations. Furthermore, Joyce has not provided any evidence that the prosecutor was motivated by a desire to punish him. See Luna v. Black, 772 F.2d 448, 450 (8th Cir. 1985) (objective evidence necessary to show prosecutorial vindictiveness); see also United States v. Lovasco, 431 U.S. 783, 789-90, 97 S. Ct. 2044, 2048-49 (1977) (proof of prejudice is necessary element of due process claim of this nature).

2. Joyce argues that the trial court erred by ordering him to pay restitution of $7,500 to J.M. We agree.

J.M. has had several surgeries during her life to correct a cleft palate. She claimed she was injured when Joyce held her down with his hand on her mouth, and as a result she was required to have additional surgeries. At sentencing, J.M. testified that she had medical bills of about $14,000 and her insurance covered about a third of it. She then said between $7,500 and $8,200 of her bills were not covered by insurance, although she previously told a presentence investigator that she had out-of-pocket expenses of $6,700.

We reverse and remand the issue of restitution because the mandates of Minn. Stat. § 611A.04, subd. 1(a) (Supp. 1995) were not followed. The statute requires a victim to submit restitution information "in affidavit form or by other competent evidence" that "describe[s] the items or elements of loss, itemize[s] the total dollar amounts of restitution claimed, and specif[ies] the reasons justifying these amounts * * *." Id. There is no documentary evidence in the record to support J.M.'s assertion about the cause of the injuries or the dollar amounts. There is also no indication that restitution information was submitted to the court three days before sentencing, as is required by the statute. See id. Affirmed in part, reversed in part, and remanded.

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