                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 36544

STATE OF IDAHO,                                   )        2010 Unpublished Opinion No. 687
                                                  )
       Plaintiff-Respondent,                      )        Filed: October 27, 2010
                                                  )
v.                                                )        Stephen W. Kenyon, Clerk
                                                  )
ABELARDO DOMINGUEZ RAMOS,                         )        THIS IS AN UNPUBLISHED
                                                  )        OPINION AND SHALL NOT
       Defendant-Appellant.                       )        BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Thomas J. Ryan, District Judge.

       Order of restitution remanded for further proceedings.

       Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

WALTERS, Judge Pro Tem
       This is an appeal from an order granting restitution to the State pursuant to Idaho Code
§ 37-2732(k) for expenses incurred in the investigation of a violation of the Uniform Controlled
Substances Act. We remand the case to the district court for further proceedings.
                                                      I.
                                            BACKGROUND
       Abelardo Dominguez Ramos pled guilty to a charge of conspiracy to traffic in cocaine,
I.C. § 37-2732, following an indictment by a grand jury. At the sentencing proceeding on
March 16, 2009, he was sentenced to a term of fifteen years with five years fixed and was
ordered to pay a fine of $10,000.00. At the conclusion of the proceeding, the district court
inquired of the prosecutor if there was any further matter to be considered. The prosecutor
replied that the State was going to request restitution and would submit an affidavit at a later date



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once the amount had been calculated.1 The court then indicated that it intended to sign an order
of restitution after the State had made its calculations and presented a restitution order to the
court. The court informed Ramos and his attorney that Ramos would have forty-two days to
object and to request a restitution hearing if Ramos did not agree to the amount sought by the
State.2 Ramos was also advised by the court in writing about his right to appeal, to file a motion
for sentencing modification and to file post-conviction proceedings. With respect to each of
those rights, Ramos was informed that he had the right to the assistance of an attorney and could
have an attorney appointed at public expense if he was an indigent person. The information
provided to Ramos by the court was silent regarding the assistance of an attorney with respect to
the restitution issue.
        Thereafter, on April 17, the district court signed an order for restitution in the amount of
$129,534.97 for expenditures incurred by the Nampa Police Department, the Boise Police
Department, and the Drug Enforcement Administration, based upon a written accounting of these
expenses submitted by the prosecutor. The order contained a recitation that the defendant had
forty-two days to object to or request relief from the restitution order in accordance with the
Idaho Rules of Civil Procedure. On that same date, following a hearing in open court, the court
also signed an order granting a request by Ramos’s privately retained counsel to withdraw from
continuing to represent Ramos. This order was signed after the district court first advised
Ramos’s counsel during the hearing that the restitution order had been entered and that Ramos
had forty-two days to dispute it. Ramos was not present in the courtroom during this proceeding,
having been previously transported to a State corrections facility to begin serving his sentence.
        The order for restitution was filed on April 21. On May 22, Ramos filed a notice of
appeal to the Idaho Supreme Court from the order of restitution entered on April 21. The appeal
was subsequently assigned to this Court for disposition.



1
        Idaho Code § 37-2732(k) provides that upon conviction under the Uniform Controlled
Substances Act, the court may order restitution for costs incurred by law enforcement agencies in
investigating the violation.
2
         Idaho Code § 19-5304(10) provides that a defendant, against whom a restitution order has
been entered, may, within forty-two (42) days of the order of restitution, request relief from the
restitution order in accordance with the Idaho Rules of Civil Procedure relating to relief from
final orders.
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                                                     II.
                                              DISCUSSION
       Where statutory authority exists to order restitution, the decision whether to order
restitution is a matter of trial court discretion. State v. Aubert, 119 Idaho 868, 869-71, 811 P.2d
44, 45-47 (Ct. App. 1991), overruled on other grounds, State v. Dorsey, 126 Idaho 659, 662, 889
P.2d 93, 96 (Ct. App. 1995). This authority is extended to the district court by I.C. § 37-2732(k).
Under I.C. § 19-5304(6), each party shall have the right to present such evidence as may be
relevant to the issue of restitution, and where a defendant is given meaningful notice and
opportunity to present evidence that is relevant to the issue of restitution, then the purpose of the
statute and due process is satisfied. State v. Blair, ____Idaho ____, ____ P.3d ____ (Ct. App.
Aug. 13, 2010).
       Ramos contends that he was deprived of his right to counsel and to due process for the
purposes of the restitution proceedings when the district court allowed his attorney to withdraw
without appointing the public defender to represent him concerning restitution. He further
asserts that the district court abused its discretion when it ordered Ramos to pay restitution
without considering Ramos’s ability to pay.
       In his motion to withdraw, Ramos’s attorney disclosed that Ramos had indicated that he
“wants to file a Rule 35 [application for relief from his sentence]” and presented to the court a
proposed order that allowed the attorney to withdraw and also provided for the appointment of
the public defender to represent Ramos. Addressing the potential Rule 35 motion during the
hearing on the motion to withdraw, the district court expressly indicated that in the event Ramos
filed a Rule 35 application for relief from his sentence, at that time the court would consider
whether to appoint the public defender to represent Ramos. Accordingly, while the district court
signed the proposed order allowing counsel to withdraw, the court struck out the reference to
appointment of the public defender.
        However, the district court did not address the question of appointment of counsel
relative to the restitution issue which was then pending. We acknowledge that it is not entirely
clear from the motion filed by the withdrawing attorney that Ramos would need assistance in
formulating an objection to the restitution order; however, we believe that the district court
should have addressed the question of appointment of counsel in relation to the pending issue,
restitution, not just a potential Rule 35 issue or prospective appellate or post-conviction

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proceeding. The district court did not do so and we will not address the propriety of appointment
of counsel relative to the request for restitution in the first instance. Therefore, we remand to the
district court to determine whether to appoint counsel for Ramos relative to the request for
restitution.
         If the court determines that an attorney should be appointed to represent Ramos with
respect to the restitution issue, then the course of that representation can resolve the question of
whether the district court need review Ramos’s financial condition as an element of determining
the amount of restitution, if any, that should be ordered, disposing of the second issue raised by
Ramos on this appeal. If the court determines that Ramos is not entitled to appointment of
counsel, then the second issue raised on this appeal need not be addressed, since Ramos did not
timely file an objection or request for a hearing on the restitution issue.
                                                      III.
                                              CONCLUSION
        Because it is unclear whether Ramos was entitled to the appointment of an attorney at
public expense with respect to the entry of the order of restitution in this case, the case is
remanded for the district court to make that determination in the first instance.
        Chief Judge LANSING and Judge GRATTON, CONCUR.




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