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Restitution is limited to crimes of conviction

Kimberly Streit Vogelsberg won in State v. Miller, No. 111,573 (Kan. App. August 28, 2015), vacating a restitution order in a Sedgwick County burglary and theft prosecution. Mr. Miller argued that the $4,700 restitution order for plumbing and electrical repairs to a home did not relate to the charges for which he was convicted. The COA agreed:

Miller's theft conviction involved only theft of a machete and baby powder; he was neither charged with nor convicted of theft of copper piping or wiring. So the theft conviction cannot support the restitution award.

As for the burglary conviction, we must first review what underlying facts are established based on that conviction. As charged and pled in this case, burglary is entering into or remaining without authority in a dwelling with the intent to commit a theft there.

To the extent Miller might have damaged the property merely by entering it without authority?such as by breaking a door or a lock?restitution might be awarded for that damage because it would have been caused by the act of burglary. But merely entering or remaining in the dwelling does not by itself cause a loss of copper piping or wiring.

Even if we surmise that it was the underlying intent to commit theft of the copper wiring or plumbing that made his unauthorized entry a burglary, that would not affect the outcome here: The mere intent to steal something doesn't cause the loss. It's the act of theft that would cause the loss, and Miller was neither charged nor convicted of theft of the copper items.

The district court's factual finding that these losses were the "direct result of Mr. Miller's actions" is supported by the evidence. But these losses were not the direct result of Miller's crimes of conviction. Accordingly, the district court erred by ordering restitution for the damages caused by removal of the copper wiring and plumbing.

[Update: the state did not file a PR and the mandate issued on October 1, 2015.]

Full post as published by Kansas Defenders on September 19, 2015 (boomark / email).