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State v. Dwyer

Court of Appeals of Kansas

March 15, 2019

State of Kansas, Appellant,
v.
Scott D. Dwyer, Appellee.

         SYLLABUS BY THE COURT

         1. Proceedings regarding the collection of judgments resulting from orders of restitution are civil in nature.

         2. The plain and unambiguous language of K.S.A. 2017 Supp. 60-2403 states that all restitution judgments not void as of July 1, 2015, continue to be enforceable forever.

          Appeal from Sedgwick District Court; Jeffrey E. Goering, judge.

          Stephanie B. Poyer, of Butler & Associates, P.A., of Topeka, for appellant.

          Scott D. Dwyer, appellee pro se.

          Before Arnold-Burger, C.J., Atcheson, J., and Burgess, S.J.

          BURGESS, J.

         Scott D. Dwyer was convicted of three counts of theft in 2003. Dwyer was ordered to pay $8, 450 in restitution as part of his sentence. In 2017, Dwyer filed a motion with the district court to release his judgment because it had remained dormant for the statutory period of seven years. However, the Kansas Legislature amended the dormant judgment statute in 2015 so that, as of July 1, 2015, restitution judgments could no longer be judicially released and instead would remain collectible forever. Any restitution judgment that was deemed void before July 1, 2015, could still be released. See K.S.A. 2017 Supp. 60-2403(b).The State argued that Dwyer's judgment was not void as of July 1, 2015, and, thus, his judgment could never be extinguished under the new statute. The district court held Dwyer's judgment was already void prior to the amendment's effective date and released his judgment. The State appeals this decision. We reverse and reinstate the judgment against Dwyer consistent with K.S.A. 2017 Supp. 60-2403(b).

         FACTUAL AND PROCEDURAL BACKGROUND

         On February 24, 2003, Dwyer pled guilty to three counts of theft and was sentenced to 12 months in prison with postrelease supervision. The district court also ordered Dwyer to pay $8, 450 in restitution as a condition of his postrelease supervision. Dwyer's sentence began on December 13, 2002.

         On November 29, 2017, Dwyer filed a motion to release his judgments in four separate criminal cases, including this one, arguing that no one had attempted to collect the judgment in five years. Dwyer asserted that inaction rendered the judgment dormant. Dwyer also argued that when the judgments went dormant, no one attempted to collect on the judgments for an additional two years which rendered them void and subject to release. In contrast, the State argued that, pursuant to K.S.A. 60-2403(d), a plaintiff has up to 12 years to collect a restitution judgment before the judgment becomes void and is subject to release. Further, due to an amendment to the statute in 2015, the State argued that Dwyer's judgment would never become dormant and, thus, could be enforced forever because his judgment was still active as of the amendment date. See K.S.A. 2017 Supp. 60-2403(b).

         The district court agreed with Dwyer. The district court found the sentencing journal entry "did not clearly and unambiguously state" that the restitution owed was immediately payable. Thus, even though Dwyer's restitution was originally ordered on March 24, 2003, pursuant to Kansas caselaw, the restitution's enforcement date was stayed until Dwyer completed his sentence. The record does not include the exact date Dwyer completed his sentence, but the district court stated that Dwyer's sentence would have been completed on December 13, 2003, assuming that he did not earn any good time credit. However, assuming Dwyer earned all his good time credit, he would have completed his sentence in mid-October 2003 at the earliest. Thus, his restitution payment would become due on either of these days and the collection clock would start running.

         The district court also explained the legislative history of K.S.A. 60-2403. Prior to 2015, subsection (d) provided that an individual has 10 years to collect a restitution judgment before it becomes dormant. If that judgment remained dormant for an additional two years, a defendant could then ask the district court to release that judgment. However, the statute was amended in 2015 and subsection (d) was stricken, which eliminated the 10-year collection period and imposed a 5-year collection period in its place. Additionally, those judgments that were not void as of July 1, 2015, would never become dormant. See L. 2015, ch. 53, § 4.

         The district court then applied K.S.A. 2017 Supp. 60-2403. Recognizing that no one had attempted to collect on the judgment within the five-year collection period mandated by the amended statute, the judgment became dormant "at least by December 13, 2008." Because the statute requires the judgment to remain dormant for an additional two years before it may officially be deemed void, the judgment would have become void on December 13, 2010, at the latest. Therefore, the district court ruled the judgment was void as of July 1, 2015, and could still be released from judgment ...


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