274 P.3d 704
Kan. Ct. App.2012Background
- Behrendt pled no contest to felony theft of beer from City Beverage valued between $1,000 and $25,000.
- Trial court imposed guidelines sentence of 6 months in prison, plus 12 months probation and a 45-day jail sanction, plus restitution of $7,870.55.
- Restitution hearing relied on City Beverage’s retail price to calculate loss.
- Trial court ordered restitution at retail value, finding it matched City Beverage’s losses including profits.
- Behrendt argued restitution should be based on wholesale cost; court disagreed and later remanded for wholesale-based calculation.
- Behrendt challenges the 45-day jail term as a probation condition, which the court sustained as within statutory discretion; appeal resulted in partial affirmation, partial reversal/vacatur/remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Restitution amount based on FMV vs. wholesale cost | Behrendt: retail FMV overstates loss | Behrendt: FMV was retail; Hall guidance not binding | restitution must be wholesale cost not retail FMV |
| Whether lost profits were recoverable | City Beverage seeks lost profits as part of loss | Lack of reliable evidence; profits speculative | Lost profits not recoverable; no defensible figure for lost profits |
| Judicial discretion on 45-day jail as probation condition | Behrendt contends abuse of discretion | Statutory allowance up to 60 days; no abuse shown | Jail term within discretionary scope; affirmed in part, reversed/ remanded in part |
Key Cases Cited
- State v. Hunziker, 274 Kan. 655 (2002) (restitution limited to actual loss; defense against windfall)
- State v. Baxter, 34 Kan.App.2d 364 (2005) (FMV used for restitution; meant to reflect actual loss)
- State v. Rhodes, 31 Kan.App.2d 1040 (2003) (FMV standard for restitution; rape of loss evidence guidance)
- State v. Casto, 22 Kan.App.2d 152 (1996) (restitution up to actual loss; reliability of valuation)
- State v. Hall, 45 Kan.App.2d 290 (2011) ( Hall guidance on retail vs wholesale restitution; not binding due to review petition)
- Illinois Cent. R. Co. v. Crail, 281 U.S. 57 (1930) (precedent on wholesale vs retail valuation in damages)
- U.S. v. Cummings, 798 F.2d 413 (1986) (10th Circuit: market value is wholesale for wholesale victims; retail for retail)