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Bush v. State12/2/2003
HILL, J., delivers the opinion of the court; LEHMAN, J., filed a dissenting opinion with which KITE, J., joined.
Appellant, Tucker James Bush (Bush), challenges the district court's sentence ordering him to pay $9,744.00 in restitution to the victim of his crime. Bush entered a plea of guilty to stealing a 1988 Chevrolet pickup from the victim, parts from which he and his girlfriend, Nikki Jo Sparby (Sparby), used to rebuild her 1991 GMC pickup that she had damaged while driving drunk. It is his contention that the district court substantially overvalued the pickup by setting restitution in an amount that allowed the victim to rebuild it piece by piece. We will hold that the restitution order exceeds the district court's legislatively authorized sentencing authority. Thus, we reverse and remand for additional proceedings consistent with this opinion.
ISSUES
Bush raises this issue:
Did the district court err when it ordered [Bush] to pay restitution to the victim for rebuilding his stolen 1988 vehicle, including labor costs, updating the transmission, and replacement parts, instead of setting the amount of restitution at the fair market value of the 1988 vehicle at the time it was stolen?
The State poses two issues for our consideration:
I. Whether this Court has jurisdiction to hear this appeal, as [Bush] knowingly and voluntarily waived the right to appeal his sentence, including restitution?
II. Whether the district court abused its discretion in its award of restitution to the victim?
FACTS
The issues raised in this appeal arise from a plea bargain agreement that contained this language:
The Defendant has been charged with the following offenses: Count I - Wrongful Taking or Disposing of Property (concealing/disposing) Valued at $500.00 or More, in violation of Wyoming Statute §6-3-403(a)(i)(b), a felony; and Count II - Conspiracy to Wrongfully Take or Dispose of Property Valued at $500.00 or More, in violation of Wyoming Statute §6-1303(a) and §6-3-403(a)(i)(b), a felony.
AGREEMENT
In consideration of the mutual terms, covenants and conditions of this Statement of Agreement, the respective parties agree with one another and respectfully submit to this Honorable Court as follows:
1) The Defendant will enter a plea of guilty to Count I of the Felony Information: Wrongful Taking or Disposing of Property (concealing/disposing) Valued at $500.00 or More, and establish a factual basis for said plea of guilty.
2) After the Court has accepted the Defendant's plea of guilty to Count I and entered the guilty plea of record, the State will then move the Court to dismiss Count II of the Felony Information.
3) There is no agreed upon recommendation to the Court regarding sentencing; the respective parties would be free to recommend to the Court whatever sentence they deem to be just under the circumstances of this case; Defendant shall pay restitution as ordered by the Court and determined by the State Department of Corrections, Field Services Division.
4) As the plea of guilty herein is based upon this Agreement and the mutual consideration contained in the Agreement itself, the Defendant will not file any post guilty plea/conviction motions, request(s) for sentence reduction, appeals, or post conviction relief petitions.
5) This agreement will be disclosed and recommended to the Court pursuant to Rule 11 of the Wyoming Rules of Criminal Procedure.
6) The above recitation constitutes the entire agreement between the respective parties.
A prison se
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