Kansas Court of Appeals
state v. roberts
sedgwick district court—vacated and remanded
no. 120,377—february 21, 2020
FACTS: Roberts convicted of burglary and theft. Sentence included order to pay $50,407.86 in restitution, jointly and severally with co-defendant, but the order did not direct any manner of payment or establish a payment plan. Roberts appealed, claiming district court’s noncompliance with statutory requirement to establish a restitution payment plan rendered the sentence illegal.
ISSUE: (1) Restitution plan
HELD: K.S.A. 2018 Supp. 21-6604(b)(2) is interpreted, finding the statute refers to a "plan established by the court for payment of restitution." That language does not merely refer to a court's order of an amount of restitution but shows legislative intent that the court establish a payment plan when it orders restitution. Based on clear statutory language, Roberts’ sentence is illegal. Restitution order is vacated and remanded to correct the sentence by establishing a plan for payment of restitution. State v. Garza, No. 118,840 (Kan. App.)(unpublished opinion), rev. denied 310 Kan. __ (2019), is distinguished as focusing on section (b)(1) of the statute rather than (b)(2). Legislature must address any concern that it is unreasonable to require a district court to order a total amount of restitution, establish a payment plan, tell the defendant of that payment plan, and permit a defendant to show the plan is unworkable.
STATUTE: K.S.A. 2018 Supp. 21-6604(b). -6604(b)(1), -6604(b)(2), -6604(e), -6604(i), -6608(c)(7), 22-3504(3), -3717(n), -3718