Swanson, Attorney General, St. Paul, Minnesota; and Michael
O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt,
Assistant County Attorney, Minneapolis, Minnesota (for
Cathryn Middlebrook, Chief Appellate Public Defender, Erik I.
Withall, Assistant Public Defender, St. Paul, Minnesota (for
Considered and decided by Connolly, Presiding Judge; Jesson,
Judge; and Florey, Judge.
district court cannot require a victim to forgo reasonable
restitution for out-of-pocket losses incurred as a result of
a crime only because the defendant is in prison and does not
have the ability to pay.
second-degree-murder case, the district court denied all
restitution for the victim, the decedent's spouse,
finding that respondent Dejonte Antwon Davis would be unable
to pay the $7, 710.11 for the funeral expenses and the
spouse's lost wages and still afford necessities while
incarcerated. Because the district court's denial of
restitution failed to provide for the victim's right to
restitution, we reverse and remand.
Davis was convicted of second-degree murder following a jury
trial. He was sentenced to 366 months in prison. At the
sentencing hearing, the district court kept the issue of
restitution open for 60 days. The court then issued a
restitution order requiring Davis to pay $7, 710.11 in
restitution to the decedent's spouse. The amount of
restitution was based on the decedent's funeral and
cremation costs and the victim's lost wages, all payable
to the Crime Victims Reparations Board. Because the
restitution amount exceeded $2, 500, Davis was provided the
duration of his sentence to pay the full amount.
objected to the restitution order and demanded a hearing. He
submitted an affidavit, claiming the expenses were too high
and that he will not have the resources to pay restitution
while in the custody of the Department of Corrections until
restitution hearing, Davis reiterated his assertion that the
claimed restitution expenses were too high, but focused his
testimony on his inability to pay. In answering questions
from the court, Davis explained that he did not have
financial resources going into prison. While working in
prison, Davis makes $0.25 per hour. Davis informed the court
that the most he could make would be $1.00 an hour, but no
matter what he makes, he "only see[s] half of"
those prison wages. The state argued the expenses requested
were reasonable restitution and presented documentation for
the expenses claimed.
the hearing, the district court granted Davis's challenge
and revoked its previous restitution order in full. The court
found that the expenses sought were all appropriate for
restitution, the costs were reasonable, and the victim was
deserving. But the court also found Davis's argument
about his inability to pay persuasive. The court stated,
"it would appear that Mr. Davis's potential earning
capacity in prison will not enable him to make payments
against the restitution while also affording other
necessities in prison." The restitution decision, the
district court explained, was "to restrict the
garnishing of Mr. Davis's prison wages so that he can
purchase the basic essentials of life."
district court abuse its discretion by failing to provide any
restitution to a ...