Cases | State v. Gates, 540 N.W.2d 134 (N.D. 1995 | 2018
The defendant pled guilty to theft of over $500. The trial court conditioned probation on payment of restitution. The defendant failed to pay restitution and the trial court held a hearing to revoke probation. At the hearing, the defendant described a pending lawsuit from which he hoped to win funds with which to pay restitution. The trial court sentenced the defendant to one year and a day in prison, with five months and one day suspended for five years, and again imposed restitution as a condition of probation. The defendant appealed, claiming that the court failed to properly consider his ability to pay. The supreme court affirmed the trial court’s revocation of probation and re-sentencing, but remanded with directions that the court make more specific the regular restitution payments to be made during the defendant’s continued probation. The record showed that the defendant did not make a sufficient effort to obtain gainful employment, did not make payments toward restitution, and made only small payments toward child support. On remand, the trial court was directed to specify the minimum amount the defendant should pay regularly for restitution given his ability, expected earnings, and obligations. The trial court was also directed to condition probation on application of net recovery in the pending lawsuit, if and when received during probation.