James Marvin Carty v The State Of Oklahoma

F-2013-619

Filed: Jun. 11, 2014

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

James Marvin Carty appealed his conviction for Robbery with a Dangerous Weapon. His conviction and sentence were confirmed, giving him ten years in prison and ordering him to pay $625. Carty argued that the trial court made a mistake by setting the restitution amount without following the correct rules. The court agreed that there was no clear proof of how much money the victim lost. Therefore, while they upheld his conviction, they canceled the restitution order and sent the case back to properly determine the victim's losses. No judges dissented.

Decision

The Judgment and Sentence of the District Court of Bryan County is AFFIRMED. The District Court's restitution order is VACATED, and the case REMANDED on the issue of the victim's loss, for a proper determination in accordance with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there an abuse of discretion by the trial court in imposing restitution without following statutory procedures?
• did the trial court err in determining the amount of restitution to be awarded based on the evidence presented?
• was the victim's economic loss established with reasonable certainty as required by law?
• did the prosecutor's representation of the restitution amount fulfill the requirement for a factual basis supporting the court's determination?

Findings

• the trial court erred in determining the amount of restitution to be awarded
• the district court's restitution order is vacated
• the case is remanded for a proper determination of the victim's loss

F-2013-619

Jun. 11, 2014

James Marvin Carty

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

SMITH, VICE PRESIDING JUDGE:

James M. Carty was tried by a jury and convicted of one count of Robbery with a Dangerous Weapon in violation of 21 O.S.2011 § 801 in the District Court of Bryan County, Case No. CF-2012-368. In accordance with the recommendation of the jury, the Honorable Mark R. Campbell sentenced Carty to ten years imprisonment. In addition, the court ordered Carty to pay restitution in the amount of $625.00. The sentence is subject to the 85% Rule under 21 O.S.2011, § 13.1. Carty appeals from the Judgment and Sentence and raises one proposition of error in support of his appeal.

I. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING RESTITUTION WITHOUT FOLLOWING STATUTORY PROCEDURES GOVERNING RESTITUTION ORDERS.

After thorough consideration of the entire record before us, including the original record, transcripts, and briefs, we find that the trial court erred in determining the amount of restitution to be awarded. Section 991a of Title 22 authorizes a trial court to order a defendant to pay restitution to the victim of a crime for any economic loss the victim has suffered. 22 O.S.2011, § 991a(A)(1)(a). Economic loss means actual financial detriment suffered by the victim consisting of medical expenses actually incurred, damage to or loss of real and personal property and any other out-of-pocket expenses, including loss of earnings, reasonably incurred as the direct result of the criminal act of the defendant. No other elements of damage shall be included as an economic loss for purposes of this section. 22 O.S.2011, § 991f(A)(3). Although a defendant may be ordered to pay restitution for economic loss as defined by Section 991f, an order of restitution may only include those losses which are determinable with reasonable certainty. 22 O.S.2011, § 991a(A)(1)(a). A reasonable certainty must be more than an approximation, estimate, or guess. Inherent in the definition of reasonable certainty is the requirement of proof of the loss to the victim. Logsdon v. State, 2010 OK CR 7, ¶ 9, 231 P.3d 1156, 1162 (internal citations omitted). We have recognized that a victim’s loss should be shown by a preponderance of the evidence; however, we have not required such loss to be proven by a certain type of evidence or that the evidence be corroborated. Honeycutt v. State, 1992 OK CR 36, ¶ 34, 834 P.2d 993, 1000. We review a trial court’s restitution award for an abuse of discretion. Logsdon, 2010 OK CR 7, ¶ 8, 231 P.3d at 1162. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the issue; a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

We find that the trial court abused its discretion in determining the restitution award. The record before this Court does not establish that any evidence was presented to the trial judge to establish the victim’s economic loss. The victim did not testify to his financial loss at the time of sentencing and the record does not reflect that the restitution request form, along with its supporting documentation, was presented to the court as mandated by Section 991f of Title 22. 22 O.S.2011, § 991f(E)(1),(3),(4). Had evidence in either of these forms been presented to the trial court the result might be different, as there would be a factual basis supporting the court’s determination that the amount ordered represented the out-of-pocket loss to the victim after reimbursement under an insurance policy. However, the prosecutor’s unsupported representation of the total amount of restitution owed the victim is insufficient to establish the victim’s financial loss with reasonable certainty as required by 22 O.S.2011, § 991a(A)(1)(a). Logsdon, 2010 OK CR 7, ¶ 9, 231 P.3d at 1162; see also e.g., Taylor v. State, 2002 OK CR 13, ¶ 5, 45 P.3d 103, 105 (concluding that victim’s claim for lost wages taken from a presentence investigation report without supporting evidence to be insufficient to determine restitution with a reasonable certainty). Because the victim’s loss was not established with reasonable certainty and does not specify to whom the restitution should be paid, we cannot conclude that the restitution amount ordered by the district court was determined with reasonable certainty.

DECISION

The Judgment and Sentence of the District Court of Bryan County is AFFIRMED. The District Court’s restitution order is VACATED, and the case REMANDED on the issue of the victim’s loss, for a proper determination in accordance with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2011 § 801
2. 21 O.S.2011 § 13.1
3. 22 O.S.2011 § 991a(A)(1)(a)
4. 22 O.S.2011 § 991f(A)(3)
5. 22 O.S.2011 § 991a(A)(1)(a)
6. 22 O.S.2011 § 991f(E)(1),(3),(4)
7. Logsdon U. State, 2010 OK CR 7, I 9, 231 P.3d 1156, 1162
8. Honeycutt v. State, 1992 OK CR 36, I 34, 834 P.2d 993, 1000
9. Logsdon, 2010 OK CR 7, 9 8, 231 P.3d at 1162
10. Neloms v. State, 2012 OK CR 7, 1 35, 274 P.3d 161, 170
11. Taylor U. State, 2002 OK CR 13, 1 5, 45 P.3d 103, 105

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 - Robbery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 13.1 - Sentencing Procedures
• Okla. Stat. tit. 22 § 991a - Restitution Orders
• Okla. Stat. tit. 22 § 991f - Definitions Related to Restitution

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Logsdon v. State, 2010 OK CR 7, I 9, 231 P.3d 1156, 1162
• Honeycutt v. State, 1992 OK CR 36, I 34, 834 P.2d 993, 1000
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
• Taylor v. State, 2002 OK CR 13, I 5, 45 P.3d 103, 105