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Bush v. State12/2/2003
ward of restitution can be waived in ertain circumstances by the defendant's voluntary actions, such as entering into a plea agreement, and then failing to make any objection at sentencing, as occurred in Meerscheidt. See also Aldridge v. State, 956 P.2d 341, 343 (Wyo.1998). Outside the context of a plea agreement, the failure to object to a factual determination in the awarding of restitution results in an appellate review for plain error. See Gayler v. State, 957 P.2d 855, 857 (Wyo.1998). In contrast, a challenge by a defendant to the authority of a trial court to make a particular award of restitution is reviewed on appeal under a de novo statutory interpretation standard whether or not the defendant objected or entered into a plea agreement. Meerscheidt, 931 P.2d at 223-224, 226-227. While not explicit in our decision in Meerscheidt, the reason for conducting a de novo review under such circumstances is that a court has only that authority to act which is conferred by the subject statute. Aldridge, 956 P.2d at 343. ("The trial court's exercise of discretion in ordering restitution does not spring from any inherent authority. Rather that exercise, like our review, is circumscribed by the statutes empowering the trial court to order restitution.") (citation omitted); see also Horn v. State, 556 P.2d 925, 927 (Wyo.1976) (" penal statute cannot be extended by implication or construction to persons or things not expressly brought within its terms, nor to cases not within the letter of the statute...."). An order of restitution by a trial court which exceeds the authority granted by the statutes governing restitution would be void, and a void order may be challenged at any time. People v. Evans, 122 Ill.App.3d 733, 78 Ill.Dec. 50, 461 N.E.2d 634, 639 (1984); see also State eX rel. TRL by Avery v. RLP, 772 P.2d 1054, 1057 (Wyo.1989).
Merkison v. State, 996 P.2d 1138 at 1141-42 (Wyo. 2000) (emphasis in original).
We perceive Bush's argument to be both a challenge to the factual basis for the order of restitution, as well as one which challenges the authority of the district court to impose restitution such as that ordered.
Restitution is described by Wyo. Stat. Ann. § 7-9-103 (LexisNexis 2003):
§ 7-9-103. Determination of amount owed; execution.
(a) As part of the sentencing process including deferred prosecutions under W.S. 7-13-301, in any misdemeanor or felony case, the prosecuting attorney shall present to the court any claim for restitution submitted by any victim.
(b) In every case in which a claim for restitution is submitted, the court shall fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant's criminal activity, and shall include its determination of the pecuniary damage as a special finding in the judgment of conviction or in the order placing the defendant on probation under W.S. 7-13-301. In determining the amount of restitution, the court shall consider and include as a special finding, each victim's reasonably foreseeable actual pecuniary damage that will result in the future as a result of the defendant's criminal activity. A long-term physical health care restitution order shall be entered as provided in W.S. 7-9-113 through 7-9-115.
(c) The court shall order the defendant to pay all or part of the restitution claimed or shall state on the record specific reasons why an order for restitution was not entered. If the court determines that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay in the future, the court shall enter specific findings in the record supporting its determ
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