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,
John Mark Winkler,
Filed March 11, 1997
Affirmed as modified
St. Louis County District Court
File No. K5-96-100652
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Alan Mitchell, St. Louis County Attorney, 100 N. 5th Avenue West, #501, Duluth, MN 55802-1298 (for Respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Foley, Judge.[*]
Appellant John Winkler pleaded guilty to felony harassment and violation of a restraining order for offenses that occurred during January 1996. See Minn. Stat. §§ 609.749, subds. 2(6), (7) and 3(2); 609.748, subd. 6 (1994). Appellant was sentenced to a stayed 15-month prison term, placed on probation for three years, and ordered to pay restitution of $3,884.01. Appellant challenges the restitution ordered as either not proven or not related to his underlying conduct. Because certain restitution items were not economic losses sustained by the victims as a result of appellant's conduct, we modify the award by reducing the restitution ordered.
Here, we conclude that some of the restitution items are proper under the statute, but some are not allowable because they are beyond mere economic losses or losses connected to this offense. The two victims' reimbursement of $486.15 for personal time they spent cancelling false magazine subscriptions and a false radio contribution, as well as talking with police and utility companies regarding the offense, does not constitute an economic loss. Although these activities were annoying aspects of their victimization, they caused no claimed out-of-pocket losses, such as missed work time. Even if these activities had amounted to economic losses, the victims improperly valued them at their respective work wages, rather than at an arguably lower administrative wage for handling such matters.
We also find no record support for restitution of $840 in attorney fees and a $132 filing fee for a harassment restraining order. While these amount to out-of-pocket expenses to the victims, they predated the present offenses by six months. As the victims were unable to link the attorney fees and filing fee to these crimes, the items are not recoverable as restitution.
The victims also claimed 15 sick days valued at $2,425.86 as an item of restitution. The evidence is uncontroverted that one victim's two-week sick period was doctor-ordered. The other victim claimed only one sick day as a result of appellant's actions. The stress caused to the victims directly related to appellant's conduct. "[R]eplacement of wages," is specifically allowed as restitution by Minn. Stat. § 611A.04, subd. 1. While sick leave is not specifically allowed as an item of restitution, restitution is not limited to out-of-pocket expenses. Because sick leave is also an asset that is earned and spent, we conclude it is compensable in this case.
While the trial court is entitled to broad discretion in ordering restitution, that discretion may apply only to items which meet the statutory requirements of being an "economic loss sustained by the victim as a result of the offense." Minn. Stat. § 611A.045, subd. 1(1). For the reasons enunciated above, we reduce the restitution ordered by $1,458.15, leaving a total restitution award of $2,425.86.
Affirmed as modified.
[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.