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State v. Cole

April 13, 2007

STATE OF KANSAS, APPELLEE,
v.
JONAS COLE, APPELLANT.



Appeal from Saline District Court; DANIEL L. HEBERT, judge.

SYLLABUS BY THE COURT

1. A trial court's order of restitution must be based on reliable evidence that yields a defensible restitution figure.

2. When there is no evidence to support a trial court's order of restitution, the restitution order must be reversed and the case remanded for further proceedings on the amount of restitution owed by a defendant.

3. K.S.A. 2006 Supp. 21-4610(d) imposes no requirement on the trial court to independently consider a defendant's financial circumstances before ordering restitution.

4. Before a sentencing court may assess fees to reimburse the Board of Indigents' Defense Services under K.S.A. 2006 Supp. 22-4513, the court must consider on the record the financial resources of a defendant and the nature of the burden the payment of such fees will impose on the defendant.

The opinion of the court was delivered by: Green, J.

Reversed and remanded with directions.

Before BUSER, P.J., GREEN and MARQUARDT, JJ.

Jonas Cole appeals the trial court's order of restitution and the trial court's order requiring him to reimburse the Board of Indigents' Defense Services (BIDS) in his criminal case. First, Cole argues that the trial court abused its discretion in ordering restitution when the amount was not based on reliable evidence. We agree. An order of restitution must be based on reliable evidence that yields a defensible restitution figure. Because there is no evidence in the record to support the amount of restitution ordered in this case, we reverse the restitution order and remand for further proceedings on this issue. Next, Cole argues that the trial court, when ordering restitution under K.S.A. 2006 Supp. 21-4610(d)(1), was required to find that he had the ability to pay the restitution amount. Nevertheless, K.S.A. 2006 Supp. 21-4610(d)(1) imposes no requirement on the trial court to independently consider a defendant's financial circumstances before ordering restitution. Therefore, Cole's argument lacks merit.

Finally, Cole contends that the trial court erred in ordering him to reimburse BIDS fees without considering his ability to pay, the financial burden that payment would impose, and the validity of the fees. We agree. Based on our Supreme Court's decision in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), we reverse the BIDS fees order and remand the case for resentencing for the trial court to consider the financial resources of Cole and the nature of the burden the payment of BIDS fees would impose on Cole. Accordingly, we reverse and remand for further proceedings on the amount of restitution owed by Cole and for resentencing in accordance with Robinson.

In September 2005, Cole applied for general and cash assistance from the State of Kansas, Department of Social and Rehabilitation Services (SRS), representing that he was a hurricane victim and had arrived in Salina on September 5, 2005. In reality, Cole had been staying in Salina since July 2005 and worked in Salina from July 2005 to October 2005. Nevertheless, he failed to disclose his employment and income on the SRS application. Cole also applied for financial assistance through the Federal Emergency Management Association (FEMA) and the Salina Office of the American Red Cross.

Cole pled guilty to making a false writing in violation of K.S.A. 2006 Supp. 21-3711 based on his application with SRS. The State dropped two other charges against Cole. As part of his plea, Cole agreed "to pay back any monies owed to the SRS and determined owing to FEMA." At the plea hearing, the prosecutor informed the trial court that Red Cross was the agency that processed the FEMA benefits.

At sentencing, the prosecutor asked the trial court to impose a restitution order of $320 for the money given to Cole by Red Cross; $1,540 for the assistance furnished by SRS; and $9,653.76 for the money furnished by FEMA. The trial court ordered Cole to pay the restitution requested by the State, a total of $11,513.76. Cole was also ordered to reimburse BIDS ...


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