State v. Nelson, 872 N.W.2d 613

Nelson and his wife were charged and pled guilty to theft-related offenses after contracting to build structures that were not completed.
A restitution hearing was set for February 2, 2015; Nelson requested a continuance to collect rebuttal evidence and obtain new counsel.
The court proceeded with the State’s witnesses but told Nelson it would not rule and would give him 60 days to request a subsequent hearing to present rebuttal evidence.
Nelson requested the subsequent hearing (scheduled for July 15, 2015); the court later cancelled that hearing and, on July 2, 2015, entered a restitution order for $69,658 jointly and severally against Nelson and his wife.
The court’s order cited Nelson’s failure to provide affidavits or availability information; the record shows the court had previously assured Nelson an opportunity to be heard but nevertheless issued the restitution order before holding the follow-up hearing.
The victims’ testimony at the February hearing supported restitution totaling $65,708.57; the court’s order set restitution $3,949.43 higher (the State concedes the lower amount is correct and the discrepancy appears clerical).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court denied due process by cancelling the rescheduled restitution hearing and ruling without allowing Nelson to present rebuttal evidence	Nelson: court promised 60-day opportunity; cancelling hearing denied his statutory and due process right to be heard on disputed restitution	State/Court: defendants had opportunity to cross-examine, did not submit affidavits or specify evidence or availability; court characterized delays as stalling	Court reversed: cancellation was an abuse of discretion; Nelson must be allowed to present evidence at a restitution hearing
Whether the restitution amount was properly calculated	Nelson: court gave no explanation or statutory-factor analysis for the amount and may have erred	State: implicitly defended the order but later conceded numerical discrepancy was clerical	Court found apparent clerical error; restitution should reflect victims’ testified total ($65,708.57); district court may correct on remand

State v. Nordahl, 680 N.W.2d 247 (2004) (restitution requires statutory hearing before imposition)
State v. Thorstad, 261 N.W.2d 899 (N.D. 1978) (restitution hearing required when amount is disputed unless waived)
State v. Tupa, 691 N.W.2d 579 (2005) (standard of review for restitution orders similar to abuse of discretion)
State v. Bingaman, 655 N.W.2d 57 (2002) (abuse of discretion standard applied to restitution rulings)
State v. Kensmoe, 636 N.W.2d 183 (2001) (courts must follow statutory limits when ordering restitution)
State v. Gill, 681 N.W.2d 832 (2004) (State bears burden to prove restitution amount by preponderance)

Decision: Reversed and remanded for a restitution hearing allowing Nelson to present evidence; clerical error in amount to be addressed on remand.