Cases | State v. Kensmoe, 636 N.W.2d 183 (N.D. 2001 | 2018
The defendant was convicted of theft of property and ordered to pay restitution as a condition of probation. The State filed a petition for revocation of probation, alleging that the defendant failed to make monthly restitution payments of $200. The trial court revoked the original restitution order on the ground that the defendant was not present at the restitution hearing and entered a second restitution order that extended the defendant’s probation for five years and required her to make $200 monthly payments. The court also ordered bail posted on the defendant’s behalf by a third party to be applied to the restitution obligation. On appeal, the defendant claimed that: (1) the trial court lacked authority to increase her sentence because it acted outside of the time limit imposed by N.D.R. Crim. P. 35; and (2) N.D. Cent. Code § 29-08-28, which authorizes application of bail posted by a third party to restitution, is unconstitutional. The court held that: (1) the trial court acted within its statutory authority in extending probation for an additional five years and the defendant’s reliance on Rule 35 was misplaced. Conditions of probation were modified, rather than the sentence. Further, an extension of probation does not subject a the defendant to multiple punishments for the same offense; and (2) the constitutionality of § 29-08-28 was not properly preserved for appeal because the record was insufficient to allow review of whether the defendant argued the issue to the trial court. Further, the record did not show that the alleged error was obvious.