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State v. Nelson

Supreme Court of North Dakota

December 22, 2015

State of North Dakota, Plaintiff and Appellee
v.
George Nelson, III, Defendant and Appellant

Editorial Note:

The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date.

Appeal from the District Court of McLean County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

Ladd R. Erickson, State's Attorney, Washburn, N.D., for plaintiff and appellee.

Scott O. Diamond, Fargo, N.D., for defendant and appellant.

Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J., Opinion of the Court by Sandstrom, Justice.

OPINION

Page 614

Sandstrom, Justice.

[¶1] George Nelson appeals a district court order requiring him to pay restitution of $69,658 after he pled guilty to theft of property. He argues the district court violated the law and denied him due process by failing to hold the rescheduled restitution hearing to allow him to present evidence to rebut the restitution amount. We reverse the order of the district court and remand to allow Nelson an opportunity to present evidence on the restitution.

I

[¶2] In 2013, Nelson and his wife were charged with theft of property and contracting without a license after the couple contracted with numerous individuals to construct buildings that were never completed. Nelson pled guilty to the charges. Prior to the February 2015 restitution hearing, Nelson requested it be continued to give him time to collect evidence to challenge the restitution amount and to hire alternate counsel. The court refused to continue the entire hearing and informed Nelson it would go forward with at least the State's witnesses. The court, however, told Nelson it would not issue a ruling and he would be given 60 days to hire alternate counsel, gather rebuttal evidence, and request a subsequent hearing. In March 2015, Nelson requested a subsequent restitution hearing, which was scheduled for May 2015. Nelson again requested a continuance because he had been released from prison in North Dakota and had been extradited to Nebraska. The court granted the request, and the hearing was rescheduled for July 15, 2015. On July 2, the court, without having conducted the rescheduled hearing, ordered restitution in the amount of $69,658 jointly and severally by Nelson and his wife. Nelson appealed.

[¶3] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § § 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶4] Nelson argues the district court violated the law and denied him due process by failing to hold the rescheduled restitution hearing to allow him to present evidence ...


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