from the District Court of Mountrail County, North Central
Judicial District, the Honorable Stacy Joan Louser, Judge.
J. Fiesel, Assistant State's Attorney, Powers Lake, ND,
for plaintiff and appellee.
A. Powell, Dickinson, ND, for defendant and appellant.
1] Lukas Kostelecky appeals a district court's
restitution order reflected within the judgment. Kostelecky
argues the district court abused its discretion in ordering
restitution in the amount of $3, 790. We reverse and remand,
concluding the district court misapplied the law in
determining that N.D. Const. art. I, § 25(1)(n) requires
restitution beyond what is necessary to make the victim
2] On February 27, 2017, Kostelecky was arrested for criminal
mischief, a class C felony, after damaging property at the
New Town High School. Kostelecky pleaded guilty to criminal
mischief, a class A misdemeanor, on July 27, 2017. The
district court held a restitution hearing and determined
Kostelecky owed $3, 790 to the New Town school district for
the damage to a ten-year-old copy machine.
3] At the restitution hearing, the State presented evidence
showing the school was quoted a price of $3, 790 to replace
the copy machine. The quote to replace the copy machine also
provided the depreciated value of the damaged copy machine
was $400. The State argued Kostelecky willfully damaged the
school's property, and under N.D.C.C. § 32-03-09.2,
he should be responsible for any actual damages to real and
personal property. The State contends the actual damage
equals the quote to replace the copy machine: $3, 790.
4] Kostelecky provided evidence showing a refurbished model
of the copy machine would cost between $1, 111 and $1, 795,
and he noted the depreciated value of the damaged copy
machine was $400. Kostelecky argued restitution does not mean
the victim is entitled to buy newer, more expensive items.
5] The district court determined:
As far as the issue of restitution, I understand your
argument perfectly well... but the problem is I believe that
Marsy's Law does require full restitution. And in this
event the amount of restitution that is going to be ordered
is the $3, 790.
Now, if, in fact, that makes the school district beyond
whole, I can't make that determination. However, that was
the amount that was expended to replace the item that was
damaged and ultimately destroyed by Mr. Kostelecky. So that
will be the amount of restitution.
appeals the district court's order for restitution in ...