Opinion No. 20
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Lynn G. Norton, District
court award of restitution, vacated.
D. Fredericksen, State Appellate Public Defender, Boise, for
appellant. Brian R. Dickson, Deputy State Appellate Public
Lawrence G. Wasden, Idaho Attorney General, Boise, for
respondent. Kenneth K. Jorgensen argued.
BURDICK, Chief Justice.
Nelson appeals the Ada County district court's award of
restitution entered under Idaho Code section 37-2732(k). The
Idaho Court of Appeals vacated the restitution award, and we
granted the State's timely petition for review. Because
we conclude the State failed to support its request for
restitution with sufficient evidence, we vacate the
FACTUAL AND PROCEDURAL BACKGROUND
2012, Nelson and her husband were charged with (1) possession
of a controlled substance and paraphernalia; and (2) injury
to child. They stood trial together. The first trial ended in
a mistrial after the State presented evidence the district
court had ordered inadmissible. A second trial was held in
September 2012, and Nelson and her husband were both
convicted of the drug-related charges but acquitted of the
injury to child charges.
Nelson's sentencing hearing, the State sought to recoup
its prosecution costs under Idaho Code section 37-2732(k) and
requested $4, 746. That amount reflects 33.9 hours of work
billed at $140 per hour. Although a restitution hearing was
never held, the district court awarded $2, 535 under Idaho
Code section 37-2732(k). The award reflects 39
hours of work billed at $65 per hour.
The district court declined to base the award on the
State's request for $140 per hour, reasoning instead that
$65 per hour was reasonable. Nelson appealed, and the State
conceded it had not presented sufficient evidence to support
the restitution award. State v. Nelson, No. 40493,
2014 WL 708467, at *3-4 (Ct. App. Feb. 21, 2014). The Court
of Appeals vacated the award and remanded the case for a
restitution hearing. Id.
remand, the district court held a restitution hearing and
permitted the parties to submit written arguments. The State
submitted an unsworn written statement, entitled
"Statement of Costs and Request for Restitution in a
Drug Case" (Statement of Costs), as evidence of its
prosecution costs. Again, the State
requested $4, 746. Nelson objected that the State's award
(1) would punish her for exercising her Sixth Amendment
rights to stand trial and present a defense under the U.S.
Constitution; (2) did not demonstrate that costs for the
mistrial were excluded; (3) did not delineate costs incurred
to prosecute Nelson's husband; (4) did not demonstrate
that the State's costs incurred on acquitted injury to
child charges were excluded; and (5) was excessive because it
did not accurately reflect the prosecutor's rate of pay.
restitution hearing, the district court noted that the
Statement of Costs was "not sworn." Even so, the
district court rejected Nelson's arguments and awarded
$4, 746 to the State. The district court assessed the award
jointly and severally against Nelson and her husband. Nelson
filed another appeal.
second review of the award, the Court of Appeals vacated the
award. Again, the Court of Appeals held that insufficient
evidence supported the award. The Court of Appeals faulted
the district court for doing essentially the same thing it
did before the first appeal- basing the award on unsworn
representations. Thus, the Court of Appeals declined to
remand the case because the State "already had an
additional opportunity to provide substantial and competent
evidence as support for the restitution award."
Id. The Court of Appeals declined to reach
Nelson's constitutional and vindictive sentencing
arguments, finding the evidentiary issue dispositive. We
granted the State's timely petition for review.