Opinion
No. 107,404.
2013-05-24
STATE of Kansas, Appellee, v. Joshua HILTON, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Michelle A, Davis, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Michelle A, Davis, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Joshua Hilton appeals the district court's modification of the restitution order in his criminal case that changed the recipient of his payments from the designated victim, now deceased, to his widow. He argues the court lacked jurisdiction to do so. Hilton raises no issue about the propriety of the widow as the new recipient. We conclude the court did have jurisdiction to make the modification and affirm.
Hilton pled guilty to several counts of burglary, attempted burglary, and theft. The district court sentenced him to 24 months of probation, with an underlying sentence of 24 months of imprisonment. In addition, the court ordered Hilton to pay restitution to multiple victims in various amounts including $500 to Raymond Hooper.
Later, the State filed a motion to modify the restitution order since Raymond had died since its entry. Since his death, his wife, Lois Hooper, was receiving the restitution payments but was unable to deposit or cash them since they were made out to Raymond. The State asked the district court to modify the order to add Lois' name to the checks, and the court granted the motion.
Hilton's only argument on appeal is that the district court lacked jurisdiction to modify the restitution order. He argues that once the sentencing court orders restitution, it loses jurisdiction to later modify that order. Whether jurisdiction exists is a question of law over which this court has unlimited review. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009).
Hilton directs us to State v. Markham, Nos. 105,797, 105,802, 2012 WL 1237895 (Kan.App.2012) (unpublished opinion) (citing State v. McDaniel, 292 Kan. 443, 446, 254 P.3d 534 [2011] ),rev. denied 296 Kan. –––– (March 27, 2013), in support of his argument that once a district court pronounces a sentence, it has no jurisdiction to modify it and that an order to make restitution is a part of a sentence. However, the cases are distinguishable from Hilton's.
In Markham, the State sought to revoke the defendant's probation some 2 years after sentencing and imposition of a restitution order. At the revocation hearing, the defendant asked the district court to reconsider his financial ability to pay restitution. This court affirmed the district court's denial of that request. 2012 WL 123789, at *2.
In McDaniel, 292 Kan. at 446, 254 P.3d 534, our Supreme Court stated the general rule that a court has no jurisdiction to change a sentence and a requirement to pay restitution is a part of a sentence. But it went on to rule it was proper for the district court to order restitution at a later hearing following the sentencing which hearing was scheduled by agreement of the parties at the time of sentencing for the purpose of setting restitution. 292 Kan. at 447–48, 254 P.3d 534.
Neither Markham nor McDaniel involve the situation we have here where the district court later modified the terms of probation by changing the name of the recipient of the restitution because the original payee had died. More pertinent to this case are the provisions of K.S.A. 21–4610:
“(a) Except as required by this subsection and subsection (d), nothing in this section shall be construed to limit the authority of the court to impose or modify any general or specific conditions of probation....
“(d) In addition to any other conditions of probation ..., the court shall order the defendant to comply with each of the following conditions:
....
(1) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime, in an amount and manner determined by the court and to the person specified by the court ....“ (Emphasis added).
Clearly, under these provisions, the court can modify conditions of probation and those conditions include the person “specified by the court” to receive restitution.
Also, the case of State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982), overruled on other grounds by State v. Haines, 238 Kan. 478, 712 P.2d 1211 (1986), is compelling. There, Yost wrote a worthless check to Jim Wilson for several head of steers. Apparently, Yost then transferred the steers to Julius Williams. Yost was convicted of giving the worthless check and placed on probation with one condition being that he pay restitution to Wilson. Wilson later obtained a judgment against Williams, which Williams paid. Williams then asked the district court to substitute his name as the recipient of the restitution payments instead of Wilson. Our Supreme Court interpreted the applicable version of K.S.A. 21–4610 broadly and found in Williams' favor concluding that he was a secondary or tertiary aggrieved party because he fully compensated Wilson for his loss. See 232 Kan. at 373–78, 654 P.2d 458. While the facts are somewhat distinguishable from this case, what is significant here is that Yost clearly provides a precedent wherein the Supreme court upheld the jurisdiction of the district court to change the recipient of restitution payments.
Hilton does not address these authorities in his brief. We conclude that under K.S.A. 21–4610, the district court did have jurisdiction to modify the restitution order in the way that it did, and his argument fails.
Because Hilton raises no issue about the propriety of Hooper's widow as the new payee, we decline to review that particular aspect of the restitution order.
Affirmed.