State v. Hand
257 P.3d 780
Kan. Ct. App.2011Background
- Adam Hand pled guilty to burglary and four thefts in Sedgwick County, Kansas.
- The trial court placed Hand on probation and ordered restitution to victims, including $1,285 for a stolen TV reflecting deductible and premium surcharges.
- The owner's insurance paid the loss (less the $250 deductible) and imposed a $345 annual surcharge for 3 years on the policy.
- The trial court based restitution on the premium surcharge rather than the TV's value, prompting Hand's appeal.
- The appellate court vacated the restitution order, remanding to determine restitution based on fair market value of the TV and permissible costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the premium surcharge is recoverable restitution | Hand argues the surcharge is not a proper restitution cost. | State contends the surcharge relates to damages caused by the crime and is recoverable. | Premium surcharge not recoverable; must base restitution on fair market value. |
| What is the proper measure of restitution for theft | Hand asserts fair market value should govern; any other measure is improper. | State did not present an alternative measure; argues damages include losses due to the crime. | Fair market value is the proper measure; replacement cost or premiums are not acceptable sole measures. |
| Role of insurance payments and aggrieved party | Premiums and insurer involvement should not override victim's property-value restitution. | Insurance carrier can be treated as an aggrieved party for restitution to reflect policy payouts. | Insurance payments are considered aggrieved party compensation, but restitution must track the property's fair market value and deductible. |
| Abuse of discretion vs. statutory framework | Trial court failed to consider fair market value as required by statute and precedent. | Trial court acted within discretion; however, the court did not properly apply the law. | Reversal: restitution order vacated and remanded to determine FMV-based restitution and otherwise permissible costs. |
Key Cases Cited
- State v. Hunziker, 274 Kan. 655 (2002) (tangential costs not recoverable; lawful scope of restitution)
- State v. Dexter, 276 Kan. 909 (2003) (loss must be caused by, not merely connected to, the crime)
- State v. Maloney, 36 Kan. App. 2d 711 (2006) (fair market value preferred; when FMV unavailable, other reliable factors may be used)
- State v. Rhodes, 31 Kan. App. 2d 1040 (2003) ( FMV is the measure of restitution for theft)
- State v. Hinckley, 13 Kan. App. 2d 417 (1989) (replacement cost should not exceed fair market value)
- State v. Casto, 22 Kan. App. 2d 152 (1996) (FMV principle governs restitution for damaged property)
- State v. Beechum, 251 Kan. 194 (1992) (aggrieved party concept and scope of recovery)
- State v. Yost, 232 Kan. 370 (1982) (aggrieved party; insurer payments align with statutory restitution framework)