Opinion
No. 2-979 / 01-0915
Filed January 29, 2003
Appeal from the Iowa District Court for Howard County, James L. Beeghly, Judge.
Alexander Buls appeals a restitution order following his guilty pleas to third-degree burglary and fourth-degree theft. AFFIRMED AS MODIFIED.
Kevin Schoeberl of Story, Schoeberl Kowalke Law Firm, Cresco, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Joseph Haskovec, County Attorney, and Troy Powell, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Alexander Buls appeals a restitution order following his guilty pleas to third-degree burglary and fourth-degree theft. He claims there was no causal connection between his criminal acts and the amount of restitution ordered in this case. He also claims the amount of restitution ordered is not supported by the evidence. We affirm as modified.
I. Background Facts Proceedings
The State charged Buls with four counts of third-degree burglary, in violation of Iowa Code sections 713.1 and 713.6A (1999). The State alleged Buls, together with some juveniles, entered Klobassa's Jack Jill Grocery Store, in Elma, Iowa, at night several times over the summer of 2000 in order to steal cash. The grocery store is owned by brothers, Joseph and Ralph Klobassa. Buls pled guilty to one count of third-degree burglary and to an amended charge of fourth-degree theft. In the written plea agreement, Buls agreed to pay his share of restitution owed to the Klobassas.
A separate restitution hearing was held. Ralph testified he kept personal cash in the amount of $8544 in a locked drawer at the grocery store for "a rainy day." Joseph testified he also kept personal cash in a locked drawer at the grocery store, in the amount of $5810. The Klobassas testified $11,829 of grocery store funds was stolen. The State also presented evidence to show that Buls did not have regular employment, but had purchased a sofa, stereo equipment, and a used car using cash during the summer of 2000.
A.H. testified he broke into the grocery store with Buls on three occasions. A.J. testified he broke into the store with A.H. and Buls on two occasions, but on a third occasion Buls was not present. Buls testified he entered the grocery store only once in late June 2000. He admitted taking about $5000. He stated he had odd jobs and earned enough to purchase the items in question.
A.J. testified A.H. was present on the occasion when Buls was not present. When questioned about this incident, A.H. asserted his rights under the Fifth Amendment.
The district court ordered Buls to pay restitution of $8544 to Ralph, $5810 to Joseph, and $11,829 to the grocery store for a total sum of $26,183. Buls appealed.
The district court actually ordered restitution of $26,491.50. However, Buls does not appeal the $308.50 restitution awarded to five other victims.
II. Standard of Review
Our review of a restitution order is for correction of errors at law. State v. Watts, 587 N.W.2d 750, 751 (Iowa 1998). The trial court's findings of fact have the effect of a special verdict. Id. When reviewing a restitution order, we determine whether the district court's findings lack substantial evidentiary support, or whether the court has not properly applied the law. State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001).
III. Preservation of Error
The State claims Buls failed to preserve error in this case because after the notice of appeal was filed, he signed a second plan of restitution as part of probation violation proceedings. The State asserts that by signing this second plan of restitution, Buls acquiesced in a new restitution amount.
As a general rule, a district court loses jurisdiction over the merits of a controversy once the notice of appeal is perfected. State v. Formaro, 638 N.W.2d 720, 726 (Iowa 2002). The district court retains jurisdiction only as to matters collateral to and not affecting the subject matter of the appeal. State v. Grant, 614 N.W.2d 848, 852 (Iowa Ct.App. 2000). After Buls appealed on the issue of restitution, the district court did not have jurisdiction to adjust the amount of restitution. There was no requirement for Buls to appeal the second restitution order, which the court did not have jurisdiction to enter. Buls adequately preserved error by appealing the original restitution order.
IV. Causation
Restitution is ordered in all criminal cases in which the defendant pleads guilty or is found guilty. Iowa Code § 910.2. The rationale of restitution under criminal law is similar to the rationale of tort under civil law. State v. Mayberry, 415 N.W.2d 644, 645-46 (Iowa 1987). The restitution order must rest on a causal connection between the established criminal act and the injury to the victim. State v. Wagner, 484 N.W.2d 212, 216 (Iowa Ct.App. 1992). It is the burden of the State, not the defendant, to prove the amount of damages causally connected to the criminal act. State v. Tutor, 538 N.W.2d 894, 897 (Iowa Ct.App. 1995).
Once the causal connection is established by a preponderance of the evidence, the statute allows recovery of "all damages" which the State can prove by a preponderance of the evidence. Wagner, 484 N.W.2d at 216. The amount of restitution is not limited by the parameters of the offense for which the defendant enters a guilty plea. State v. Holmberg, 449 N.W.2d 376, 377 (Iowa 1989). A restitution order is not excessive if it bears a reasonable relationship to the damage caused by the defendant's criminal act. Bonstetter, 637 N.W.2d at 165.
Buls contends his criminal acts did not cause the total amount of restitution ordered in this case. He points out there was evidence A.J. and other juveniles took items from the grocery store when he was not present. To hold Buls liable for the criminal acts of others, the State must show he was involved in a scheme or concert of action. See State v. Idhe, 532 N.W.2d 827, 829 (Iowa Ct.App. 1995). A theft by another individual, in which defendant did not participate, is not chargeable to him. Id.
Buls should not be required to pay restitution for the amount A.J. testified was taken at the break-in when Buls was not present. A.J. testified this amount was $50. Therefore, we reduce the amount of restitution Buls should be required to make by $50. Buls was involved in a scheme or a concert of action regarding the other amounts that were stolen. We find there is sufficient causal connection to make him responsible for the remainder of the restitution ordered by the district court. As we noted above, the amount of restitution is not limited by the parameters of the offense for which Buls entered a guilty plea. Holmberg, 449 N.W.2d at 377.
V. Amount of Restitution
Buls claims the court erred in determining the amount of restitution. He asserts the testimony of Ralph and Joseph was confusing and does not support the award of restitution that was made. We will affirm a restitution award if it is within the reasonable range of the evidence. Watts, 587 N.W.2d at 752. A restitution order should have a reasonable basis in the evidence, and be neither speculative nor imaginary. Id. Ralph and Joseph testified fully about their losses at the grocery store. We determine the restitution order is within the reasonable range of the evidence.
We affirm the restitution order entered by the district court, except that we modify to reduce the amount of restitution Buls is ordered to pay by $50. The restitution order is modified to the sum of $26,133.