Summary
The Wyoming Supreme Court held that a district court could not authorize the State to reduce a restitution amount to a civil judgment when the court had not ordered the defendant to pay restitution. The court also held that, to decline ordering restitution, the district court had to make specific findings that the defendant lacked both a present ability and a reasonable probability of a future ability to pay. The court vacated the erroneous portions of the order and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the district court had statutory authority to allow the State to reduce $18,733 to a civil judgment when the court had not entered an order requiring McEwan to pay restitution.
- Whether the district court could decline to order restitution based only on a finding that McEwan lacked a present ability to pay, without finding that no reasonable probability existed that she would be able to pay in the future.
Holdings
- The district court lacked authority to allow the State to reduce $18,733 to a civil judgment because execution as a civil judgment is authorized only for an existing order for restitution.
- A district court may decline to order restitution only if it makes specific findings that the defendant lacks the present ability to pay and that no reasonable probability exists that the defendant will have the ability to pay in the future.
Key quotations
“A judgment that may be executed as a civil judgment plainly must originate as an "order for restitution."” (419 P.3d at 883)
“absent an express finding that the defendant has no ability to pay and no reasonable possibility exists that she will have an ability to pay in the future, the district court is required to order restitution.” (419 P.3d at 884)
Factual background
McEwan was charged with obtaining public welfare benefits by misrepresentation and pleaded no contest to one charge. The district court fixed restitution at $18,733. At a hearing, McEwan showed that she was disabled, lived on a fixed income, and had recently received a Chapter 7 bankruptcy discharge; the State conceded it had no evidence rebutting her current inability to pay but argued that her future ability to pay could change. The district court found that she could not presently pay, declined to order payment, and nevertheless authorized the State to reduce the restitution amount to a civil judgment.
Procedural history
After McEwan pleaded no contest to one felony charge, the district court fixed restitution at $18,733. McEwan presented evidence that she was disabled, lived on a fixed income, and had received a Chapter 7 bankruptcy discharge. The district court found that she lacked the present ability to pay, did not order her to pay restitution, but allowed the State to reduce the amount to a civil judgment. McEwan appealed.
Remand instructions
The district court must enter an order conforming to Wyo. Stat. Ann. §§ 7-9-102 and 7-9-103(c), setting forth its decision concerning McEwan's ability and obligation, if any, to pay all or part of the claimed restitution. The order must either require restitution or include specific findings that McEwan lacks both the present ability to pay and any reasonable probability of future ability to pay.