Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
The opinion of the court was delivered by: Gratton, Judge
Amended order of restitution to pay $22,500 to the Idaho Industrial Commission, vacated.
Vicki A. Jensen is serving a determinate life sentence. This is an appeal from an order of restitution. Jensen claims the district court lacked authority to order restitution. We agree and vacate the order.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jensen pled guilty to first degree murder, and on March 14, 2001, the district court imposed a determinate life sentence. This Court affirmed her judgment of conviction and determinate life sentence, State v. Jensen, 137 Idaho 240, 46 P.3d 536 (Ct. App. 2002), and review was denied on May 16, 2002.
Over six years after sentencing, on July 13, 2007, the district court entered an initial order of restitution directing Jensen to pay $22,500 in restitution to the Idaho Industrial Commission. The order was entered without a hearing or notice to Jensen or her attorney. Jensen did not receive actual notice that the order had been entered until December 13, 2007. On March 6, 2008, Jensen filed a motion to proceed with an untimely appeal. On June 30, 2008, Jensen filed a document titled appeal of order of restitution, which was treated by the district court as a notice of appeal and a motion for relief under Idaho Rule of Civil Procedure 60(b). The district court denied Jensen's motion for the right to an untimely appeal. However, the district court granted relief under its reserved authority in Rule 60(b) to set aside a judgment within one year of its entry. The court set aside the initial order of restitution on the ground that it was entered without notice and a hearing, and expressly allowed the State to seek another order within 30 days. The State filed a motion for restitution, and after a hearing, an amended order of restitution was entered against Jensen directing her to pay $22,500 to the Idaho Industrial Commission. Jensen appeals.
Jensen contends the district court lacked subject matter jurisdiction or authority to enter either the initial or the amended order of restitution. First, Jensen argues that under State v. Jakoski, 139 Idaho 352, 79 P.3d 711 (2003), the district court no longer had subject matter jurisdiction "once the remitter (sic) in her case was issued and the judgment of conviction became final." Alternatively, Jensen argues that the district court exceeded its authority, under Idaho Code § 19-5304(6), to order restitution at sentencing or at "such later date as deemed necessary by the court," as that period of time had expired, citing State v. Ferguson, 138 Idaho 659, 661, 67 P.3d 1271, 1273 (Ct. App. 2002). A number of cross-contentions arise at this juncture. The State argues that the district court lacked subject matter jurisdiction to vacate the initial order of restitution under Rule 60(b), and, thus, the initial order of restitution remains valid. In this regard, the State asserts that I.C. § 19-5304(10) limits a court's subject matter jurisdiction to entertain a challenge to an order of restitution to 42 days from entry of the order or at the conclusion of a hearing to reconsider. Jensen did not file her challenge to the initial order of restitution within 42 days. In response, Jensen argues that since the State did not appeal the district court's Rule 60(b) decision or file a cross-appeal, the State cannot now raise the issue on appeal.*fn1
A criminal trial court is without subject matter jurisdiction or authority to order restitution unless provided by statute. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct. App. 2002) ("It is generally recognized that courts of criminal jurisdiction have no power or authority to direct reparations or restitution to a crime victim in the absence of a statutory provision to such effect."). Idaho Code § 19-5304(2) grants to the trial court the power to order defendants to pay restitution to victims that suffer economic loss. Richmond, 137 Idaho at 37, 43 P.3d at 796; State v. Ferguson, 138 Idaho 659, 661, 67 P.3d 1271, 1273 (Ct. App. 2002). Thus, subject matter jurisdiction resided in the district court in this matter pursuant to the statutory conveyance. The parties here do not contest that the district court obtained subject matter jurisdiction, pursuant to the statute, to order restitution. Rather, their contentions rest on whether the district court's subject matter jurisdiction lapsed or, alternatively, whether the district court acted within its subject matter jurisdiction but outside of its authority.
Jensen argues that I.C. § 19-5304(6), which states that "restitution orders shall be entered by the court at the time of sentencing or such later date as deemed necessary by the court," defines the outer limit of the court's subject matter jurisdiction to enter an order of restitution. Thereupon, Jensen claims that, since it has not been demonstrated that the more than six years from sentencing to entry of the orders of restitution was "necessary," the court lacked subject matter jurisdiction to enter the orders of restitution. On the other hand, the State asserts that I.C. § 19-5304(6) relates to the exercise of discretion by the court and, therefore, does not involve the court's subject matter jurisdiction.
Conversely, the State argues that I.C. § 19-5304(10), which states that "a defendant, against whom a restitution order has been entered, may, within forty-two (42) days of the entry of the order of restitution, request relief from the restitution order," defines the outer limit of the court's subject matter jurisdiction to grant relief from an order of restitution. Thereupon, the State claims that, since Jensen did not seek relief from the initial order of restitution within 42 days of its entry (or from the date of her actual notice of its entry), the court lacked subject matter jurisdiction to vacate the initial order of restitution and it remains valid. On the other hand, Jensen asserts that I.C. § 19-5304(10) relates to the court's authority consistent with the Idaho Rules of Civil Procedure and, therefore, does not involve the court's subject matter jurisdiction.
We conclude that, while Title 19, Chapter 53, Idaho Code conveys subject matter jurisdiction upon trial courts to enter orders of restitution in criminal matters, both I.C. § 19-5304(6) and (10) relate to the court's authority to act within that subject matter jurisdiction. In State v. Armstrong, 146 Idaho 372, 195 P.3d 731 (Ct. App. 2008), we extensively analyzed the difference between a court's power to act, i.e., subject matter jurisdiction, and a court's authority to act within its subject matter jurisdiction. In Armstrong, we noted:
A precise use of the term "jurisdiction" refers only to either personal jurisdiction over the parties or subject matter jurisdiction. Unfortunately, however, the term is often used more loosely to refer simply to a court's authority to take a certain action or grant a certain type of relief. That is, courts and lawyers sometimes say that a court lacked jurisdiction when they really mean simply that the court committed error because the action that was taken did not comply with governing law. For example, our appellate courts have referred to a lack of "jurisdiction" when perhaps more precisely meaning that a motion or complaint was not timely filed, that a ...