335 P.3d 1211
Kan. Ct. App.2014Background
- Laurie Herron pled/diverted after forging checks and withdrawing $4,966 and endorsing $170 from Oxford House; diversion required $6,864.10 restitution but was revoked for nonpayment and she was later convicted and placed on 18 months probation.
- At sentencing Herron testified she earned $680/month (37 hrs/wk at Subway) and after fixed expenses and child-support deductions had virtually no surplus; she filed a motion arguing restitution was unworkable given indigency.
- The State sought restitution (about $7,709.94 originally) and argued indigency alone does not excuse restitution; it suggested a nominal $10/month payment as workable.
- The district court acknowledged Herron’s poverty but ordered restitution of $6,864.10 (the prior diversion amount) without specifying a payment plan, stating poverty alone was not a basis to forgive restitution.
- On appeal the Kansas Court of Appeals found the district court committed errors of law and fact: poverty can, in some cases, justify reducing or excusing restitution, and the restitution ordered (with no workable payment plan) was unrealistic given Herron’s income.
- The court vacated the restitution order and remanded for a workable restitution plan, reasoning that requiring $10/month would force repayment over 57 years (or require an unreasonably large monthly payment during 18 months), which no reasonable person would find workable.
Issues
| Issue | Plaintiff's Argument (Herron) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the district court must consider indigency when ordering restitution | Herron argued her poverty made the restitution amount unworkable and the court should relieve or reduce restitution | State argued indigency alone should not excuse restitution and nominal payments (e.g., $10/month) are workable | Court: Poverty can be a compelling circumstance; district court erred in treating indigency as per se insufficient to justify relief |
| Whether the restitution order was "workable" given Herron’s finances | Herron argued full amount or nominal payments were impractical (would take decades) and thus unworkable | State argued even slow payment is "workable" and some payment is better than none | Court: Ordering $6,864.10 without a realistic payment plan was an abuse of discretion; $10/month would take 57 years — not workable |
| Whether Herron preserved her appellate challenge | Herron timely objected, filed motion, and testified about finances | State contended she failed to present sufficient evidence at the district court | Court: Herron preserved the issue by objection, motion, and testimony; appellate review permitted |
| Proper remedy when restitution is ordered but no payment plan is provided | Herron asked court to decline restitution or set feasible plan | State favored imposing restitution with nominal plan or extended supervision | Court: Vacated restitution order and remanded for district court to craft a restitution order and payment plan consistent with defendant’s ability to pay and statutory workability requirement |
Key Cases Cited
- State v. Schulze, 267 Kan. 749 (1999) (upheld relief from restitution where defendant’s financial circumstances were compelling)
- State v. Goeller, 276 Kan. 578 (2003) (restitution is the rule; defendant bears burden to show restitution is unworkable)
- Puckett v. Bruce, 276 Kan. 59 (2003) (district court has discretion over amount of restitution and may leave defendant some spending money)
- State v. King, 288 Kan. 333 (2009) (court need not inquire into finances absent defendant’s claim that restitution is unworkable)