This opinion will be unpublished and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
C9-99-494

State of Minnesota,
Respondent,

vs.

Susan Lee Ramsey,
Appellant.

Filed July 13, 1999
Reversed
Shumaker, Judge

Cass County District Court
District Court File No. K6-98-347

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

Earl E. Maus, Cass County Attorney, Box 3000, Walker, MN 56484 (for respondent)

Jay E. Sommer, Assistant District Public Defender, Ninth Judicial District, P.O. Box 310, Walker, MN 56484 (for appellant)

Considered and decided by Judge Peterson, Presiding Judge, Judge, Short, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant challenges the district court's restitution order arguing that the court erred in requiring appellant to pay for a Denver saddle when there was no evidence that appellant caused the loss of the saddle. We reverse.

FACTS

After appellant Susan Lee Ramsey's criminal conviction for arson, the district court ordered restitution to the victim for the damage caused by the fire. The victim requested restitution for a Denver saddle, which victim believes may or may not have been burned in the fire or stolen by appellant. The court ordered restitution for the saddle. Appellant challenges the restitution order, arguing that the inclusion of the Denver saddle was an error of law.

D E C I S I O N

Deciding whether a particular item of restitution fits within the statutory definition is a question of law and is fully reviewable by the appellate court. In re Welfare of D.D.G., 532 N.W.2d 279, 280 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995). However, the district court has wide discretion in ordering restitution. State v. O'Brien, 459 N.W.2d 131, 133 (Minn. App. 1990). If there is a dispute over the proper amount or type of restitution, the dispute is resolved by a preponderance of the evidence. Minn. Stat. § 611A.045, subd. 3 (1998). The burden of substantiating the amount and type of restitution is on the prosecution. Id.

Appellant argues that the district court abused its discretion by ordering her to pay restitution in the amount of $1,450 for a Denver saddle. She contends that there was no factual basis on which to make the award because there is no evidence that the saddle was damaged by the fire she started. Furthermore, she was not charged with theft and there is no evidence that she stole the saddle.

On review of the record, it appears that the district court abused its discretion by ordering appellant to pay restitution for the saddle. Appellant pleaded guilty to second-degree arson. Although the victim suggests that appellant either set fire to the saddle or stole it, there was no evidence in the record that the Denver saddle was harmed in any manner by the fire. See State v. Keehn, 554 N.W.2d 405, 408 (Minn. App. 1996) (holding that record must provide factual basis for district court restitution award) review denied (Minn. Dec. 17, 1996). Appellant was not charged with any theft crimes, and there is nothing in the record to support an accusation that appellant stole the saddle. See State v. Esler, 553 N.W.2d 61, 65 (Minn. App. 1996) (holding that restitution order improper where order is related to a criminal matter separate from defendant's conviction), review denied (Minn. Oct. 15, 1996). Although the determination of restitution is within the province of the district court, the victim must show entitlement to restitution. The facts do not support the district court's order awarding restitution for the saddle.

Reversed.