Cases | State v. Sausville, 557 A.2d 502 | 2018
The defendant pled guilty to simple assault and stipulated in a plea agreement that the amount of restitution would be determined at a restitution hearing. The defendant did not testify at the hearing and the court ordered restitution without inquiring into his ability to pay or determining a manner of payment. On appeal, the defendant claimed that the court’s failure to inquire into his ability to pay or determine a manner of payment invalidated the order. The State, basing its argument on theories of contract law, claimed that the defendant’s agreement to pay restitution waived any right he possessed under Vt. Stat. Ann. tit. 28, § 252 to a determination of his ability to pay. The court held that the trial court must determine a the defendant’s ability to pay restitution despite any provision in a plea agreement to make such payment. The defendant could not waive his right to a determination of ability to pay if he lacked knowledge of what the court’s determination of the amount of restitution would be. Further, the defendant’s failure to take the stand did not obviate the court’s duty to determine ability to pay. If a the defendant does not take the stand on his own behalf, the State must establish ability to pay restitution in some other manner.