State v. YostState v. Yost
This is an appeal from an order of the Otoe County District Court ordering defendant to pay restitution, in addition to his sentence of incarcerаtion. We vacate the restitution order and remand for a new sentencing hearing.
On March 30,1989, defendant appeared with counsel before the Otoe County District Court and pled guilty on an amended information charging the offense of aiding and abetting an arson in the second degree, a Class III felony. Defendant admitted that he agreed to and did act as a lookout while another individual set fire on a property owned by a Mr. and Mrs. Anderson. He stated that he thought the other individual was only going to set fire to some tires or a wrecked car behind the Anderson building, but instead the fire spread to the building and burned it and an adjoining building, owned by a Mr. and Mrs. Barton, to the ground. Defendant has raised no assignments of error regarding the plea acceptance, and that part of the record is not before this court.
A sentencing hearing was held on May 5, 1989. Defendant was present with court-аppointed counsel. Defendant was sentenced to not less than 3 nor more than 5 years in the Nebraska Penal and Correctional Comрlex and was ordered to pay costs of this action. The sentencing order also provided:
IT IS FURTHER ORDERED, ADJUDGED AND CONSIDERED by the Court that the victims Mr. and Mrs. Walter Anderson have judgment of and against the defendant Jack Yost, also known as Chopper Yost, in the sum of $75,000.00 together with interest thereon from this date forward at the ratе of 10.51 percent per annum. The amount of this judgment is exclusive of amounts paid by the insurer of the Anderson premises.
IT IS FURTHER ORDERED, ADJUDGED AND CONSIDERED by the Court that Mr. & Mrs. Bob Barton have and recover judgment of and against the defendant Jack Yost, also known as Chopper Yost, in the sum of $30,000.00 together with interest thereon at the ratе of 10.51 percent per annum.
On appeal to this court, defendant’s sole assignment of error is that the trial court abused its discretion and jurisdictiоn in entering judgment for the Andersons and the Bartons without the submission of evidence and the opportunity for a separate hearing. He has raised nо assignment of error concerning the length of his sentence.
This court has stated that sentencing is within the discretion of the trial court, and we review a sentence on appeal for an abuse of discretion. See,
State
v.
Brown, ante
p. 10,
Initially, these dollar amounts are properly termed “restitution” and are controlled by the provisions of
We also note here that § 29-2287 provides that an award of restitution does not limit or impair the right of a victim to sue and recover dаmages from the defendant in a civil action.
To determine the amount of restitution, the court may hold a hearing at the time of sentencing. The amount of restitution shall be based on the actual damages sustained by the victim and shall be supported by evidence which shall becomе a part of the court record. The court shall consider the defendant’s earning ability, employment status, financial resources, and family оr other legal obligations and shall balance such considerations against the obligation to the victim.
In the present case the sole bаsis for the damages determination was the presentence report (PSR) prepared by the probation officer. The probation officer was not present at the sentencing hearing, and there was no testimony presented as to money damages. The PSR included only the following references to damages:
Walter and Bettymae Anderson said the fire cost them $75,000 above their insurance....
The Cornhusker Casualty Company of Omaha has paid Mr. Anderson $16,000 on his building, $10,000 on his property, and $1,400 on his radio. A claim for approximately $5,000 for the clean up has been submitted, but it has not bеen paid as of yet.
Bob and Belva Barton lived in their building. Mr. Barton called me on 4/18/89. He said they not only lost their livelihood but their home.. . . They didn’t have any insurance. He would estimate their loss at $30,000. He said he would be glad to get at least a third of that amount back____
The present offense caused approximately $137,400 in property damage. Besides destroying two businesses, it left the Barton family homeless.
A letter written to the court by Walter Anderson, аnd included in the PSR, contained this reference: “This fire cost us $75,000.00 above our insurance. We did not have much insurance on the building, $26,000.00, and contents.” This referеnce was also included: “We had thousands of dollars in tools, bought over the years, in the building that is lost now. Also thousands of new and resaleable [sic] usеd parts and antique car parts. We had extra, expensive new spare parts, to repair our small and large wreckers.” A fire incident report contained an estimate of the monetary damages to both properties. Another fire incident report related what an insurance agent told a fire investigator regarding the Andersons’ insurance coverage on the property.
Although
In any event, it is clear from the record that thе sentencing court did not meaningfully consider the defendant’s earning ability, employment status, financial resources, and family or other legal obligations, nor did the trial court balance these considerations against the obligation to the victims. This is mandatory under § 29-2281, once
We hold that although the sentencing judge did not abuse his discretiоn in ordering defendant to pay restitution, he did err in failing to consider the factors set forth in § 29-2281 once he made the decision to order restitution. Accordingly, the order of restitution is vacated, and the cause is remanded for a new sentencing hearing.
Sentence of restitution vacated, and CAUSE REMANDED WITH DIRECTIONS.