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Bush v. State12/2/2003
ntence was imposed, but suspended, and Bush was given a split sentence with probation. At the hearing on Bush's change of plea, the subject of restitution came up only briefly and almost as an afterthought, although it was made clear to Bush that the sentence to be imposed was a matter within the discretion of the district court.
At the sentencing hearing, the incarceration portion of the sentence was imposed, but restitution was set to be done another day. Eventually, a hearing was held to determine the amount of restitution to be paid by Bush to the victim. The amount was set at $9,744.00 ($8,954.00 owed jointly and severally with Sparby, the remainder was owed individually by Bush). We will set out the restitution order in detail and begin by noting the district court's apt description of this case as one "involving the theft and subsequent dismantling of a 1988 Chevrolet Pickup,... and the combining of many of said parts with a wrecked 1991 GMC Pickup, and the victim representing the 1988 Chevrolet Pickup to have unique and special value to him and the victim wishing to rebuild the 1988 Chevrolet Pickup and restore it to its former condition...." The district court then went on to make these findings and conclusions:
1. The test which is to be applied in this particular matter is the one set forth in W.S. ยง7-9-103, specifically relating to determination of restitution amounts owed, which directs the Court to fix a reasonable amount as restitution owed to each victim for actual pecuniary damage, and this is the touchstone that the Court will apply in this case.
2. Pecuniary damage means all damages which a victim could recover against a defendant in a civil action arising out of the same facts or event, including damages for wrongful death. It does not include punitive damages, damages for pain and suffering, mental anguish and loss of consortium.
3. As the Court pointed out in the companion case involving co-defendant Sparby ( State v. Sparby, Criminal case #3759) this is not simply a case involving the theft of a motor vehicle; rather, the facts of this criminal action involve co-defendant Sparby knowing that the 1998 Chevrolet Pickup was stolen. Ms. Sparby paid money for the victim's stolen vehicle, knowing she wasn't going to get a good title. [Bush] eventually figured this out and further, was advised by Ms. Sparby that the 1988 Chevrolet Pickup was, in fact, stolen. The fact that someone else stole the 1988 Chevrolet Pickup and sold it to Ms. Sparby does not give rise to any claim of unjust enrichment.
4. Further, this case involves the theft of a vehicle for its parts and as the parts are worth more than the whole in this motor vehicle theft, a jury could reasonably award a damage amount that exceeds the book value of the 1988 Chevrolet Pickup at the time of the theft. Book value of the stolen 1988 Chevrolet Pickup at the time of its theft, however, is not the appropriate value for the determination of restitution in this case.
5. The Court finds that $8,700.00 is an appropriate restitution value for reconstruction labor in rebuilding the 1988 Chevrolet Pickup, and that $4,434.00 is an appropriate value for the restitution of replacement parts. Further, the sum of $750.00 is a reasonable sum for transportation of vehicle and parts back to the victim's residence in Longmont, Colorado. The total of these amounts is $13,884.00.
6. In the appropriate case and by reason of the wording of the statute, attorney's fees could be awarded but attorney's fees are not appropriate in this case, and therefore, the requested $1,100 claim for attorney's fees is disallowed.
7. As parts from the victim's 1988 Chevrole
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