State v. Hosack, 668 N.W.2d 707 (Neb. Ct. App. 2003)

Cases | State v. Hosack, 668 N.W.2d 707 (Neb. Ct. App. 2003) | 2018

Defendant was charged with theft, theft by receiving stolen property, and criminal mischief as a result of his involvement with theft of movable items contained in a pickup truck and damage to the truck.  Defendant pled guilty to attempted criminal mischief and was ordered to pay $3500 in restitution for stolen property and for damage to the truck.  On appeal, defendant claimed that there was no evidence of any actual damages or losses sustained as a direct result of the charge for which he was convicted, and that restitution was inappropriate because he lacked the ability to pay.  The court held that: (1) evidence supported a finding of that $1454.92 in restitution for damage to the pickup truck was appropriate.  The charge of attempted criminal mischief involved defendant’s intentional conduct that constituted a substantial step in a course of conduct intended to culminate in the intentional or reckless damage to the property of another; (2) the trial court erred in ordering restitution above $1454.92 because the amount of damages above the sum was related to property stolen from the pickup truck, as opposed to damage to the truck.  As defendant was not convicted of theft or theft by receiving stolen property, the sentence was modified to provide for restitution in the sum of $1454.92; and (3) the trial court properly considered defendant’s earning ability, employment status, financial resources, and family obligations before ordering restitution.  Defendant had the ability to pay, particularly in light of the downward modification of the payment amount.