State v. Wolff, 438 N.W.2d 199 (S.D. 1989)

Cases | State v. Wolff, 438 N.W.2d 199 (S.D. 1989) | 2018

The defendant was convicted of theft by embezzlement of property received in trust and ordered to pay restitution to his victims. On appeal, the defendant claimed that: (1) the trial court lacked authority to order restitution where no probation or suspension of sentence was ordered; (2) the trial court violated due process by ordering restitution for offenses that the defendant did not admit and for which he was not convicted; (3) procedures outlined in Chapter 23A-28 were not followed; and (4) seizure of his property for sale, the proceeds of which were to be applied toward restitution, constituted a forfeiture in violation of S.D. Codified Laws § 23A-27-2. The court held that: (1) restitution statutes were indicative of legislative intent to authorize courts to order restitution regardless of the form a particular sentence may take; (2) the restitution order was reversed, as it did not pertain to offenses to which the defendant pled guilty or specifically admitted and the trial court did not inform him or otherwise discuss potential restitution at the plea hearing; (3) the trial court’s handling of the defendant’s restitution was statutorily unauthorized. Once the defendant entered the penitentiary, any plan of restitution had to be created under the authority of the board of pardons and paroles rather than the trial court and its court services officer; and (4) the defendant’s argument that restitution constituted an illegal forfeiture was without foundation, due to specific statutes on restitution passed by the legislature.