State v. Gorton
90 A.3d 901
Vt.2014Background
- Defendant Jason Gorton appeals a restitution order of $38,786.72 for embezzling cigarettes from Price Chopper; argues timing and several substantive defects.
- Gorton admitted to stealing cigarettes over an eighteen‑month period and to other card and merchandise theft; State charged embezzlement March–August 2010 and four fraudulent card counts.
- At sentencing, the court indicated restitution should be requested within 30 days, but the State filed almost four months later; a restitution hearing occurred three months after the request.
- The restitution order used six‑month loss data but originally considered eighteen months, and totaled $33,786.72; on appeal the court remanded for a hearing limited to the six‑month period in the charging information.
- Issues raised include the State’s timeliness, scope of restitution beyond the conviction period, defendant’s ability to pay, uninsured losses, and admissibility of hearsay; the court remands for a new evidentiary hearing with narrowed scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of restitution request | State properly requested restitution at sentencing; no hard deadline under §7043. | State missed the 30‑day deadline and prejudice ensued. | No abuse; restitution hearing allowed; deadline not a hard cutoff. |
| Scope of restitution tied to conviction period | Restitution amounts can reflect the six months charged in the information. | Plea and misstatement limit restitution to a shorter period. | Remanded to limit restitution to six months as charged; eighteen months improper. |
| Defendant's ability to pay | Court should consider total financial information for ability to pay. | No explicit findings on ability to pay were made. | Remand to make findings on ability to pay. |
| Uninsured losses findings | Uninsured losses are recoverable as material loss; evidence supports amounts. | Losses may be uninsured in part; findings needed on uninsured status. | Remand to determine uninsured status for the six‑month period. |
| Admissibility of hearsay | Hearsay was relied upon but may be admissible in context. | Relying on inadmissible hearsay is error. | Moot on remand; issue can be addressed in new hearing. |
Key Cases Cited
- State v. Kenvin, 2011 VT 123 (VT 2011) (Restitution is discretionary with statutory links to the victim's loss)
- State v. Thomas, 2010 VT 107 (VT 2010) (Restitution reinforces victim compensation, not punishment)
- State v. Bohannon, 2010 VT 22 (VT 2010) (Restitution as compensation; purpose is victim relief)
- State v. Sausville, 151 VT. 120 (VT 1989) (Court must make findings on ability to pay)
- State v. Curtis, 140 Vt. 621 (VT 1982) (Per curiam; need for ability-to-pay findings)
- State v. VanDusen, 166 Vt. 240 (VT 1997) (Reasonable certainty standard for loss in restitution)
- State v. May, 166 Vt. 41 (VT 1996) (Lost profits restitution must meet reasonable certainty)