[T1] The appellant, Timothy J. Smith, entered a plea of "no contest" to one misdemeanor count of reckless endangerment. He was sentenced to one year in jail and was ordered to pay restitution to the two victims of his crime. On appeal, he claims that the district court abused its discretion when it ordered that he pay a total of $335,387.26 in restitution, and that it acted unlawfully when it ordered that the appellant make a "bona fide effort" to pay the restitution within five years. We affirm the district court's order regarding the amount of restitution, but find that it did not have the authority to impose a deadline on when the restitution must be paid.
ISSUES
[12] 1. Did the district court abuse its discretion when it ordered that the appellant pay $335,387.26 in restitution?
2. Did the district court have the authority to require the appellant to make a "bona fide effort" to have the total restitution paid within a five-year period?
FACTS
[T3] The appellant was arrested and charged with one count of aggravated assault and battery after it was reported that he intentionally struck the victim with his vehicle, which in turn рinned the victim between the appellant's truck and another vehicle. The appellant then left the scene of the accident. The victim was taken to a hospital by life flight for treatment of serious injuries to his legs.
[T4] Eventually, the State and the appellant came to an agreement that the State would amend the charge from aggravаted
DISCUSSION
Did the district court abuse its discretion when it ordered that the appellant pay $335,387.26 in restitution?
[15] The appellant claims that the district court's decision to order him to pay over $335,000 in restitution was unreasonable when one considers his familial responsibilities and economic conditions.
[T6] The State argues that the appellant waived appellate review of the restitution amount because he agreed to pay restitution pursuant tо the plea agreement and he did not object to the final amount of restitution set by the district court In Merkison v. State,
[T7] Beyond that waiver, we find that the record adequately supports the district court's restitution order. While the appellant argues that the district court's order was unreasonable because it did not take into account how much money the appellant actually makes and his other financial obligations, the statutes regarding restitution do not require the district court to make findings in that regard. In fact, the restitution statutes require the district court "to order a defendant to pay restitution to each victim unless the court specifically finds that the defendant has no ability to pay and no reasonable possibility exists that he will have an ability to pay.'' Solis v. State,
[T8] This Court has interpreted that statute to mean that the district court is "under no obligation to make a specific finding that there is an ability to pay restitution." Whitten v. State,
[T9] The appellant directed this Court to several federal cases that hold that a restitution order must be consistent with a defendant's ability to pay. However, these cases are unpersuasive, primarily because the applicable federal statute at the time those opinions were published specifically required the federal courts to consider "the financial resоurces of the defendant [and] the financial needs and earning ability of the defendant and the defendant's dependents[.]" See 18 U.S.C. 3664(a) (1995). Wyoming's statute is fundamentally different, requiring the district court to order restitution unless it finds that the appellant is unable to pay. See Wyo. Stat, Ann. §§ 7-9-102 and 7-9-108(c).
[T 10] The appellant's federal authority is also unpersuasive because it is based upon the federal restitution statutes in effect before Congress passed the Mandatory Victims' Restitution Act of 1996. In that act, Congress mandated that restitution is required for certain offenses, including erimes of violence, crimes against property, or crimes involving an identifiable vietim. 18 U.S.C.A. § 3663A(c)(1) (West Supp.2012). Further, the courts are required to order full restitution without giving any consideration to the economic cireumstances of the defendant. 18 U.S.C.A. § 3664(f)(1)(A) (West 2000). If a defendant willfully fails to pay his restitution, he may be charged with a misdemeanor and punished with one year in prison or a fine of twice the amount of the unpaid balance of the restitution. 18 U.S.C.A. § 8615 (West 2000). Therefore, in many respects, Wyoming district courts are afforded more disсretion to consider a defendant's economic cireum-stances when considering restitution. In Wyoming, a district court has the authority to find a defendant unable to pay the restitution, whereas a federal court must order restitution no matter the economic cireum-stances.
[111] Here, the victims presented verifiable evidence consisting of bills from medical providers and vehicle repair shops and victim testimony of the damages they
Did the district court have the authority to require the appellant to make a "bona fide effort" to have the tоtal restitution paid within a five-year period?
[112] When the district court imposed restitution, it ordered that "a bonafide [sic] effort be made by [the appellant] to retire the restitution within five (5) years from November 22, 2011[.J' The appellant claims that the restitution statutes do not give the district court the authority to require the restitution be paid within a certain amount оf time. The State argues that Wyo. Stat. Ann. § 7-9-104 (LexisNexis 2011) gives the district court the authority to establish a payment plan regarding restitution. We review challenges to the district court's authority to order restitution de movo. Solis,
[113] "In Wyoming, a trial court's power to order restitution springs from statutory law, not any inherent authority." Id. at ¶ 8, at 325. That authority stems from Wyo. Stat. Ann. §§ 7-9-101 through 7-9-114 (LexisNexis 2011). As discussed above, see supra T 7, the district court is required to order a defendant to pay restitution unless it makes a specific finding that the defendant is unable to pay. Wyo. Stat. Ann. §§ 7-9-102 and 7-9-103(c). Further, Wyo. Stat. Ann. §§ 7-9-104 through 7-9-109 outline the steps to be taken when making a restitution plan with the assistance of the probation and parole agent assigned to the defendant. The State submits that these specific statutes gave the district court the authority to order the five-year time frame.
[114] Despite the State's arguments to the contrary, the plain reading of Wyo. Stat. Ann. § 7-9-104 makes it clear that a restitution plan was not an option available to the district court. The statute states:
(a) In any case in which the court has ordered restitution under W.S. 7-9-102, 7-9-118 or 7-13-301, if the sentencing court orders suspended imposition of sentence, suspended sentence or рrobation, the court shall require that the defendant in cooperation with the probation and parole officer assigned to the defendant, or in the case of unsupervised probation any probation and parole officer or any other person the court directs, promptly prepare a plan of restitution including the name and address of each victim, the amount of restitution determined to be owed to each victim pursuant to W.S. 7-9-108 or 7-9-114 and a schedule of restitution payments.
Wyo. Stat. Ann. § 7-9-104(a) (emphasis added). While the statute initially refers to "any case in which the court has ordered restitution," that clause clearly is modified by the language that limits the application оf the statute to cases where "the sentencing court orders suspended imposition of sentence, suspended sentence or probation|.]" Id. This
[115] Here, the appellant was sentenced to one year in jail. His sentence was not suspended nor was he given probation and, therefore, his sentence is not a sentence for which a restitution plan may be imposed. Consequently, the district cоurt's authority regarding restitution was limited to ordering the restitution amount under Wyo. Stat. Ann. §§ 7-9-102 and 7-9-103(b). The district court did not have the authority to put a time limitation on the payment of the restitution and, thus, that portion of the sentence is illegal. Sarr v. State,
[116] "When a district court exceeds its sentencing authority and the sentence is divisible, we have the option of remanding for resеntencing or simply mandating that the illegal portion be stricken." Crosby v. State,
CONCLUSION
[117] The district court did not abuse its discretion when it ordered the appellant to pay over $335,000 in restitution to the two victims. The district court did not make a finding that the appellant would be unable to pay restitution and, therefore, was required by Wyo. Stat. Ann. §§ 7-9-102 and 7-9-108(c) to order that restitution be paid. Further, the amount of restitution was reasonable, as it was based upоn verifiable costs associated with injuries and property damage that were incurred by the victims as a result of the appellant's criminal behavior. However, the district court did not have the authority to require the appellant to make a bona fide effort to have the restitution amount retired within five years. We hereby vacate the five-year pay off requirement and affirm the remainder of the appellant's sentence, including the amount of restitution owed.
Notes
. The prosecutor explained that one of the reasons for the plea agreement was that damages caused by an intentional act were excluded from coverage under the appellant's auto insurаnce. The prosecutor hoped that if the appellant pled guilty to reckless endangering, which does not require an intentional act, the victims' damages would not be excluded from coverage. Despite the appellant's plea to a reckless act, as opposed to an intentional one, the insurance company still denied coverage.
. We note that the restitution amount was not set at the sentencing hearing but, rather, was set at a restitution hearing held several months after the appellant was sentenced. A district court's authority to order restitution "does not spring from any inherent authority" but comes from statute. Aldridge v. State,
While a district court generally must order restitution at the sentencing hearing and include it in the judgment and sentence, we have found that right is personal to the defendant and may be waivеd. Kahlsdorf v. State,
Here, a specific restitution amount was not determined at the sentencing hearing. Instead, the district court оrdered "that restitution will be set per agreement between the State and the Defendant. If an agreement on restitution is not made the [district court] will set a restitution hearing." This does not comply with the general rule regarding restitution. However, there is still the question of whether the appellant knowingly and voluntarily waived his right to have a specific restitution amount determined at the sentencing hearing. That question will continue to linger. The appellant has chosen not to challenge this issue on appeal before this Court, and we, therefore, decline to consider it. See Smith v. State,
. The appellant filed a motion challenging the district court's general authority to order restitution, which was denied. The denial of that motion is not raised as a basis of this appeal. At the restitution hearing, the appellant objected to some of the restitution submitted by the State. The district court agreed with the appellant and did not order any of the restitution to which there was an objection, finding that the requests were too speculative.
. A district court must determine thаt the restitution sought is for "actual pecuniary damage resulting from the defendant's criminal activity(.]" Wyo. Stat. Ann. § 7-9-103(b). "Pecuniary damage" is defined as "all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event, including damages for wrongful death. It does not include punitive damages and damages for pain, suffering, mental anguish and loss of consortium." Wyo. Stat. Ann. § 7-9-101(a)(iii) (LexisNexis 2011).