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State v. Kostelecky

Supreme Court of North Dakota

January 22, 2018

State of North Dakota, Plaintiff and Appellee
v.
Lukas Jeremy Kostelecky, Defendant and Appellant

         Appeal from the District Court of Mountrail County, North Central Judicial District, the Honorable Stacy Joan Louser, Judge.

          Amber J. Fiesel, Assistant State's Attorney, Powers Lake, ND, for plaintiff and appellee.

          Markus A. Powell, Dickinson, ND, for defendant and appellant.

          OPINION

          JENSEN, JUSTICE.

         [¶ 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 whole.

         I

         [¶ 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.

         Kostelecky appeals the district court's order for restitution in ...


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