927 N.W.2d 842
Neb. Ct. App.2019Background
- Heather M. McBride and her sister Danica AllAround jointly purchased a 2009 GMC Acadia for $13,144; both names appeared on the title.
- In May 2017 McBride forged AllAround’s signature on the title, sold the vehicle for $6,500, and kept the proceeds; AllAround received no reimbursement.
- McBride pled guilty in county court to attempted second degree forgery (Class I misdemeanor) pursuant to a plea agreement; parties requested a restitution hearing and sentencing.
- At the restitution hearing the court received the bill of sale, AllAround’s bank statement showing payment of $13,144, and the forged title; AllAround sought restitution for the purchase price.
- The county court ordered McBride to pay $13,144 restitution and sentenced her to 90 days’ jail; the district court affirmed the sentence and amount of damages but vacated and remanded the restitution order for a determination of McBride’s ability to pay and payment timeframe.
- McBride appealed to the Nebraska Court of Appeals, which affirmed the district court’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McBride was properly advised that restitution was possible | McBride: she was not informed of possible restitution at plea and plea was involuntary as to restitution | State: counsel informed court at plea that parties would request a restitution hearing, showing McBride knew restitution was possible | Held: Counsel’s statement before plea put McBride on notice; plea not involuntary as to restitution |
| Whether restitution was an appropriate remedy | McBride: dispute is civil; criminal restitution inappropriate | State: offense caused loss of property; restitution authorized under statute | Held: Restitution appropriate—offense resulted in loss of property and court did not abuse discretion |
| Whether the State proved actual damages amount | McBride: State failed to prove actual damages; court should have considered depreciation/market value | State: evidence (bill of sale, bank statement, testimony) showed AllAround paid $13,144 recently; statutes permit reasonable replacement value | Held: Evidence supported $13,144 valuation; district court did not abuse discretion |
| Whether restitution order must consider defendant’s ability to pay at sentencing | McBride: (implicit) contest to amount and imposition without ability-to-pay finding | State: sentencing court must consider ability to pay and may hold hearing | Held: District court vacated and remanded to county court for determination of McBride’s ability to pay and payment schedule; otherwise restitution order affirmed as to amount |
Key Cases Cited
- State v. Ramirez, 285 Neb. 203 (discusses restitution authority and requirements)
- State v. War Bonnett, 229 Neb. 681 (failure to inform defendant of restitution possibility renders plea involuntary)
- State v. Fischer, 220 Neb. 664 (knowledge of penalty may be proven by means other than judge’s advisement)
- State v. Mentzer, 233 Neb. 843 (defendant’s counsel indicating willingness to make restitution can show awareness restitution possible)
- State v. Holecek, 260 Neb. 976 (court must consider whether restitution should be ordered, amount of actual damages, and defendant’s ability to pay)
- State v. Clapper, 273 Neb. 750 (restitution is part of criminal sentence)
- State v. King, 19 Neb. App. 410 (sentencing appropriateness is discretionary and subjective)
- Barrios v. Commissioner of Labor, 25 Neb. App. 835 (district court orders affecting substantial rights are final for appeal)
- State v. Coble, 299 Neb. 434 (appellate jurisdiction principles for district court acting as intermediate appellate court)