This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-895

 

State of Minnesota,

Respondent,

 

vs.

 

Kathleen Elaine Svoboda,

Appellant.

 

Filed April 3, 2007

Reversed and remanded

Kalitowski, Judge

 

Scott County District Court

File No. 70-2003-09663

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379-1220 (for respondent)

 

Richard L. Swanson, 207 Chestnut Street, Suite 235, P.O. Box 117, Chaska, MN 55318 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Kathleen Elaine Svoboda challenges the district court order requiring her to pay joint and several restitution for amounts owed to victims of crimes of which she was not convicted.  We reverse and remand.

D E C I S I O N

            Appellant pleaded guilty to two charges arising out of alleged criminal activities involving a used car business.  Of a multi-count complaint, appellant pleaded guilty to one count of aggravated forgery and one count of title fraud.  Appellant is one of four codefendants and each codefendant pleaded guilty to some but not all of the counts.  The record indicates that the district court reserved setting restitution at the sentencing hearing.

            Because appellant failed to properly request a restitution hearing, the district court did not address appellant’s challenge to the restitution order but ordered her to pay joint and several restitution, with her codefendants for the total amount requested, without regard to which defendant’s actions were responsible for which victim’s losses.  Appellant argues that the district court erred in not allowing her to challenge the joint and several restitution, because ordering her to pay restitution to victims of crimes for which she was not convicted constitutes an illegal sentence.                         

            An appellant has a statutory right to a restitution hearing, but must properly invoke that right by following the statutory procedure.  “An offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested, or within 30 days of sentencing, whichever is later.”  Minn. Stat. § 611A.045, subd. 3(b) (2004).  In State v. Thole, 614 N.W.2d 231 (Minn. App. 2000), this court held that an appellant must comply with the mandatory procedural requirements in order to challenge a restitution order.  Because appellant admits she did not timely file the required documentation pursuant to Thole, the district court did not err in determining that appellant waived her right to an evidentiary hearing on the amount of restitution.

            But the holding in Thole does not preclude an appellant from challenging an illegal sentence.  Minn. R. Crim. P. 27.03, subd. 9 (stating that an illegal sentence may be corrected at any time).  Thus, we must determine whether appellant’s restitution order results in an illegal sentence. 

            In Minnesota, the criteria and procedure for ordering restitution are defined by statute.  Minn. Stat. §§ 611A.04, .045 (2004).  A crime victim has the right to receive restitution as part of the disposition of a criminal charge that results in conviction.  Minn. Stat. § 611A.04, subd. 1(a) (2004). 

            Generally, a “victim” under the restitution statute must be a “direct victim of the crime,” State v. Jones, 678 N.W.2d 1, 25 (Minn. 2004), and “[r]estitution is only proper where the victim’s losses are directly caused by the conduct for which the defendant was convicted.”  State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999) (quotation omitted).  But a criminal defendant may agree as part of a plea agreement to pay restitution to recipients who are not direct victims of defendant’s crimes.  State v. Wallace, 545 N.W.2d 674, 677 (Minn. App. 1996) (holding that a defendant may enter a voluntary plea agreement to provide restitution to recipients who are not direct victims of the defendant’s crimes), review denied (Minn. May 21, 1996).  And a criminal defendant may be held liable for damages resulting from the actions leading to conviction even if those damages arise from counts of which the defendant was not convicted.  State v. Olson, 381 N.W.2d 899, 901 (Minn. App. 1986) (holding defendant responsible for restitution on theft charge, even though he was acquitted of theft, where his actions that resulted in burglary conviction were instrumental in causing the theft to occur). 

            Here, appellant argues that the joint and several restitution she is ordered to pay is neither the direct result of her conduct nor an element of her plea agreement.  We have held that a restitution order that exceeds a defendant’s expectations may be improper.  In State v. Chapman, the appellant, pursuant to a plea agreement, pleaded guilty to some counts and the remaining counts were dismissed.  State v. Chapman, 362 N.W.2d 401, 402 (Minn. App. 1985), review denied (Minn. May 1, 1985).  The district court ordered restitution on all counts and this court reversed and remanded.  Id. at 404.  Although the district court had not violated a term of the plea agreement, which left restitution to the discretion of the district court, this court concluded that the district court had ordered restitution that went beyond the terms of the plea agreement.  Id. 

            The facts here appear to be similar to Chapman.  But we are unable to determine from this record whether appellant, at the time she entered her guilty plea, was advised that she could be ordered to pay joint and several restitution for counts to which she did not plead guilty.  See State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993) (stating that where restitution is not part of a plea agreement but is expected, it may still be properly ordered), review denied (Minn. Dec. 22, 1993).  We therefore reverse and remand this matter to the district court to address whether an order for this appellant to pay joint and several restitution is proper and, if not, to order an appropriate restitution amount.

            Reversed and remanded.