State v. Dailey
497 P.3d 1153
| Kan. | 2021Background
- On Nov. 20, 2017, Dailey was found on Wichita Greyhound Park property in possession of air-conditioning coils; charged with criminal trespass and theft and pleaded guilty to both counts.
- At plea, Dailey clarified he pleaded guilty only to taking coils already removed and set by a fence.
- The State sought $25,000 restitution (the insurance deductible); property manager Erhart testified replacement/repair cost and, when asked about replacing four condenser and four A-frame coils, estimated $23,425.04.
- Dailey disputed the amount, arguing the record did not support a finding he stole eight coils and that restitution should be limited to at least the $1,500 minimum reflected in his plea.
- The district court ordered $17,278.92 restitution based on eight coils; the Court of Appeals vacated the order for lack of substantial competent evidence and remanded for a new hearing.
- The Kansas Supreme Court affirmed vacatur but held the State may not introduce new evidence on remand and the district court must base any new restitution award solely on the existing record.
Issues
| Issue | State's Argument | Dailey's Argument | Held |
|---|---|---|---|
| Whether the restitution order was supported by substantial competent evidence | Evidence at hearing (Erhart's testimony and cost estimate) supported award | Record did not support finding about number/type of coils taken | Order lacked substantial competent evidence; vacated |
| Whether remand may permit a new evidentiary hearing where original record was insufficient | Remand should allow a new evidentiary hearing so State can present additional proof | No second hearing; State already had its opportunity and cannot get another bite | Remand allowed but limited: no new evidence; district court must decide based on existing record |
| Whether double jeopardy bars a second restitution hearing | (Not argued by State) | Second hearing would violate double jeopardy | Court declined to decide on preservation grounds but indicated Dailey’s position persuasive; nevertheless resolved on narrower remedial grounds (no new evidence on remand) |
Key Cases Cited
- State v. Simmons, 295 Kan. 171 (2012) (legal questions reviewed unlimitedly)
- State v. Gentry, 310 Kan. 715 (2019) (preservation rule for constitutional claims)
- United States v. Leonzo, 50 F.3d 1086 (D.C. Cir. 1995) (government not entitled to a second bite when it fails to meet its burden)
- United States v. Dickler, 64 F.3d 818 (3d Cir. 1995) (where government bears burden its case should stand or fall on first record)