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North Dakota Supreme Court Announces Interpretation of Restitution Statutes

by Christopher Zoukis

The North Dakota Supreme Court reversed a criminal restitution order because the trial judge misapplied statutory and constitutional law in determining the amount ordered.

On February 27, 2017, Lukas Kostelecky was arrested for criminal mischief, a Class C felony, after damaging a copy machine at New Town High School. He pleaded guilty to criminal mischief, a Class A misdemeanor, and was ordered to pay $3,790 in restitution to the New Town school district.

At the restitution hearing, the state presented a quote of $3,790 to replace the copier. The quote also noted that the depreciated value of the machine was $400. Kostelecky presented evidence that a refurbished copier would cost between $1,111 and $1,795. When ordering the $3,790 in restitution, the trial court judge said, “Now, if, in fact, that makes the school district beyond whole, I can’t make that determination . . . [but] that was the amount that was expended to replace the item that was damaged and ultimately destroyed by Mr. Kostelecky.”

Kostelecky appealed, arguing that “restitution does not mean the victim is entitled to buy newer, more expensive items.” After reviewing state law, as well as a 2016 addition to the North Dakota Constitution called “Marcy’s Law,” the North Dakota Supreme Court determined that the trial court abused its discretion in crafting the restitution order.

Marcy’s Law provides victims “[t]he right to full and timely restitution in every case from each offender for all losses suffered by the victim as a result of the criminal or delinquent conduct.” Two other North Dakota statutes address restitution: N.D.C.C. § 12.1-32-08(1), which provides that a victim is entitled to “reasonable damages . . . actually incurred,” and N.D.C.C. § 32-03-09.2, which provides that a victim is entitled to “actual damages.”

Reading the three laws together, the Court found that the purpose of restitution in North Dakota is “to ensure the victim of a crime is made whole.” Specifically, the Court said that “harmonizing these constitutional and statutory provisions together, we conclude a victim is entitled to be made whole through a reasonable restitution amount based on the entirety of his or her actual losses.”

Here, the trial court misapplied the law. While situations may exist where replacement costs are necessary, if an item can be repaired or replaced on a secondary market, “replacement costs may be excessive.” The trial court failed to consider this, as well as the evidence presented by Kostelecky. Indeed, despite what the trial judge said, he could, and in fact is required to, determine whether a restitution order makes a victim “beyond whole.” Accordingly, the Court vacated the restitution order and remanded the case for reconsideration in light of this opinion. See: State v. Kostelecky, 906 N.W.2d 77 (N.D. 2018). 

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Related legal case

State v. Kostelecky



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