                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 46500

 STATE OF IDAHO,                                 )
                                                 )       Filed: March 25, 2020
         Plaintiff-Respondent,                   )
                                                 )       Karel A. Lehrman, Clerk
 v.                                              )
                                                 )       SUBSTITUTE OPINION
 ROY CLINE JOHNSON,                              )       THE COURT’S PRIOR OPINION
                                                 )       DATED FEBRUARY 24, 2019,
         Defendant-Appellant.                    )       IS HEREBY WITHDRAWN
                                                 )
                                                 )
                                                 )
                                                 )
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon
       County. Hon. Christopher S. Nye, District Judge.

       Order of restitution, vacated.

       Eric D. Fredericksen, State Appellate Public Defender; Kim A. Coster, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Chief Judge
       Roy Cline Johnson appeals from the district court’s order of restitution. Johnson argues
the district court lacked the jurisdiction to grant the motion for restitution because it was filed by
the crime victim, who was not a party to the defendant’s criminal case. Alternatively, Johnson
contends the district court abused its discretion by ordering restitution after the statutory time
expired and in determining the amount of restitution. The State responds by asserting that the
district court had jurisdiction to order Johnson to pay restitution and did not abuse its discretion.
Because the State was not seeking restitution on behalf of the crime victim and the victim did not
have standing to file a restitution motion, the district court lacked authority to consider the motion.
Thus, the order of restitution is vacated.

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                                                    I.
                      FACTUAL AND PROCEDURAL BACKGROUND
        The State charged Johnson with felony aggravated driving under the influence of alcohol,
Idaho Code § 18-8006, after Johnson struck a pedestrian while driving under the influence, causing
injuries to the victim. The district court appointed a public defender to represent Johnson in the
proceedings. Pursuant to a plea agreement, Johnson pled guilty to the offense. At the sentencing
hearing, the State asked the district court to reserve the issue of restitution to give it additional time
to determine the victim’s economic loss as medical bills were still coming in and communications
with insurance companies were ongoing. The district court sentenced Johnson to a period of
confinement of ten years, with three years determinate, and reserved the matter of restitution for
180 days.
        During the following eight months, the victim went through a period of homelessness and
was incarcerated following a conviction for felony driving under the influence. The victim
retained an attorney, Jeffrey McKinnie, to assist in seeking restitution and filing a civil action
against Johnson. In mid-March, McKinnie filed a motion for preparation and copy of the judgment
of conviction and motion for an order of restitution in Johnson’s criminal case. The motion stated
that negotiation attempts to resolve the victim’s outstanding medical bills with Johnson’s insurance
company had been unsuccessful, but McKinnie believed obtaining a copy of Johnson’s judgment
of conviction would substantially assist the process. McKinnie noticed the motion for a hearing
and included an affidavit from the victim stating as a result of the traumatic brain injury he incurred
during the accident, he could not recall if the State had contacted him regarding restitution.
McKinnie did not include Johnson or Johnson’s counsel on the motion for restitution’s certificate
of service.
        Six days later, the victim, represented by McKinnie, and Johnson formalized a civil
settlement; the victim signed a release of all claims against Johnson in exchange for $100,000,
which was paid by Johnson’s insurance company. In the settlement, the victim recognized the
injuries he sustained from the accident may be permanent and progressive, yet he released Johnson
from liability for:
        any and all actions, causes of action, claims, demands, damages, costs, loss of
        services, expenses, compensation and all consequential damage on account of or in
        any way growing out of any and all known and unknown, present or future or
        unanticipated personal injuries and property damage resulting or to result.

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McKinnie took an active part in the civil settlement and served as the notary public on the release.
       Despite the civil settlement McKinnie brokered, he continued to pursue the restitution order
on the victim’s behalf. Neither Johnson nor the victim was transported to the scheduled restitution
hearing, so the district court continued the hearing. The court directed McKinnie to prepare the
appropriate transport orders. McKinnie prepared the orders and incorrectly indicated that he was
the attorney for the defendant in the header and body of the documents. Like McKinnie’s previous
filing, he failed to include Johnson or his counsel on the certificates of service. Next, McKinnie
filed a supplemental affidavit on behalf of the victim to reflect an increase in the medical costs
incurred, now totaling more than $100,000.
       Approximately three weeks later, and almost two months after McKinnie filed the initial
motion for preparation and copy of the judgment of conviction and motion for an order of
restitution, Johnson’s court-appointed attorney filed an order to transport Johnson to the restitution
hearing. However, Johnson’s attorney did not have a copy of McKinnie’s underlying motion and
briefing related to the restitution request at that time; McKinnie provided Johnson with these
documents the morning of the restitution hearing. The district court continued the hearing because
the victim had not been transported.
       At the next restitution hearing, Johnson, the State, the victim, and all relevant attorneys
were present. At the onset, Johnson’s counsel challenged the basis of the restitution hearing,
objecting to the victim’s standing to independently file motions within a criminal case without
going through the prosecuting attorney’s office. The State, in its sole moment of participation in
the hearing, concurred:
       There is an issue of standing as far as the victim being able to file or petition the
       Court for their own restitution order separate and apart from anything done through
       the prosecutor’s office. I think if we’re just addressing that point, then I think
       [Johnson’s attorney] has a valid point.
In response, McKinnie directed the district court’s attention to Idaho Code § 19-5304(6) which
states:
       Restitution orders shall be entered by the court at the time of sentencing or such
       later date as deemed necessary by the court. Economic loss shall be based upon the
       preponderance of evidence submitted to the court by the prosecutor, defendant,
       victim or presentence investigator. Each party shall have the right to present such
       evidence as may be relevant to the issue of restitution, and the court may consider
       such hearsay as may be contained in the presentence report, victim impact statement
       or otherwise provided to the court.


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The court allowed the restitution hearing to go forward.1
       McKinnie presented oral argument in support of the motion for restitution, arguing: (1) the
civil settlement was solely to compensate for pain, suffering, and lost wages, not for medical bills
incurred as a result of the offense, and (2) I.C. § 19-5304(2) precludes the court from considering
the insurance payment in the restitution award. The district court requested additional briefing
from Johnson and McKinnie regarding the court’s ability to consider the insurance payment to the
victim and whether Johnson objected to the victim’s asserted amount of economic loss. The State
did not participate in the additional briefing. After consideration, the district court held the civil
settlement, release, and prior insurance payments did not limit the trial court’s ability to award
restitution equal to the full amount of the victim’s medical economic loss. The court entered a
restitution order for $101,665.64. Johnson timely appeals.
                                                 II.
                                   STANDARD OF REVIEW
        When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently
with any legal standards applicable to the specific choices before it; and (4) reached its decision
by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). Over
questions of law, this Court exercises free review. State v. O’Neill, 118 Idaho 244, 245, 796 P.2d
121, 122 (1990).
                                                 III.
                                            ANALYSIS
       Johnson argues the district court lacked jurisdiction to order restitution because neither the
crime victim nor McKinnie had standing to independently file the underlying motion for restitution
within Johnson’s criminal case. Jurisdictional issues, such as standing, are questions of law.
Tucker v. State, 162 Idaho 11, 17, 394 P.3d 54, 60 (2017). A court’s jurisdiction has two
components: jurisdiction of the subject matter of the proceeding and jurisdiction of the person.


1
        It is unclear from the appellate record whether the court held Idaho Code § 19-5304(6)
gave the victim standing to file a restitution motion and present evidence of economic loss within
a criminal case or whether the court determined the statute conferred independent judicial authority
to order restitution, despite the presence of a standing issue.

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Hanson v. State, 121 Idaho 507, 509, 826 P.2d 468, 470 (1992). Jurisdiction over the subject
matter refers to the authority of the court to exercise judicial power over a particular class or type
of dispute, id., while jurisdiction over the person refers to the court’s power to bring a person into
its adjudicative process. State v. Ambro, 142 Idaho 77, 79, 123 P.3d 710, 712 (Ct. App. 2005).
       “A criminal trial court is without subject matter jurisdiction or authority to order restitution
unless provided by statute.” State v. Jensen, 149 Idaho 758, 760, 241 P.3d 1, 3 (Ct. App. 2010).
However, I.C. § 19-5304(2) grants trial courts the power to order a defendant who is found guilty
of any crime to pay restitution to the victim if there is an economic loss as a result of the crime.
Therefore, by statute, criminal trial courts are cloaked with subject matter jurisdiction relative to
restitution orders. State v. Keys, 160 Idaho 95, 97, 369 P.3d 313, 315 (Ct. App. 2016).
       However, the establishment of a court’s subject matter jurisdiction over the type of action
does not automatically confer personal jurisdiction over the people before it. See Hanson, 121
Idaho at 509, 826 P.2d at 470. In criminal matters, personal jurisdiction generally relates to the
ability of a trial court to bring a defendant into the adjudicative process. Without personal
jurisdiction the court has no person to which to hold accountable to for the crime alleged. See
State v. Rogers, 140 Idaho 223, 228, 91 P.3d 1127, 1132 (2004). Although a court may gain
personal jurisdiction when a party appears and submits to the court’s jurisdiction, id., a court
generally lacks personal jurisdiction over individuals who are not parties, or have not been served
by parties, to the action. Hooper v. State, 150 Idaho 497, 500, 248 P.3d 748, 751 (2011) (holding
the district court lacked personal jurisdiction over the Idaho Industrial Commission in a criminal
restitution action because the Commission was never a party to the action and had not been served
with a summons and complaint, or submitted to the district court’s jurisdiction).
        Similarly, a court lacks jurisdiction to hear a case if a person does not have standing
because the case or controversy requirement for judicial power cannot be satisfied. Martin v.
Camas Cty. ex rel. Bd. Comm’rs, 150 Idaho 508, 512, 248 P.3d 1243, 1247 (2011). Standing
issues may arise when a non-party attempts to make a motion to the trial court. See State v. Draper,
151 Idaho 576, 597, 261 P.3d 853, 874 (2011). In Draper, the Idaho Supreme Court found the
district court’s deferment to a procedural request by the presentence investigator troubling because
“as the investigator was not a party to the case, he or she has no standing to make a motion to the
court. Simply put, it was not the investigator’s role to request a different procedure for the
[presentence investigation report].” Id.

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       Under Idaho’s current statutory scheme, crime victims are not parties to a criminal case
even for the limited purpose of seeking restitution and therefore lack standing to pursue a motion
independently of a party. The Idaho Constitution provides “every action prosecuted by the people
of the state as a party, against a person charged with a public offense, for the punishment of the
same, shall be termed a criminal action.” IDAHO CONST. art. V, § 1. This principle is echoed
statutorily by I.C. § 19-104, which defines the State and the person charged as the only parties to
criminal actions. At the core of these provisions is the belief that criminal prosecutions are public
matters, sought by the State on behalf of its citizen, not contests between a defendant and a crime
victim. See State v. Gault, 39 A.3d 1105, 1113 (Conn. 2012).
       Although the Idaho Constitution enumerates a series of rights for crime victims, including
the right “to restitution, as provided by law, from the person committing the offense that caused
the victim’s loss,” it does not confer upon a crime victim the status of a party in a criminal
proceeding.2 IDAHO CONST. art. I, § 22. This is true, even when the proceeding involves a
restitution order. Although restitution statutes vary from state to state, it is generally understood
while crime victims are sometimes present and often represented by counsel, the government is
still the only party to the case, other than the defense, and procedurally, the prosecutor requests
restitution. Cortney E. Lollar, What Is Criminal Restitution?, 100 Iowa L. Rev. 93, 110 (2014).
Idaho Code § 19-5304 does not depart from this long-standing principle.             In the relevant
provisions, I.C. § 19-5304 defines “victim” but does not define a crime victim as a party to the
criminal proceedings, even for the limited purpose of seeking restitution.
       As a crime victim is not a party to a criminal case, the victim cannot intervene in a
defendant’s criminal proceeding because, unlike Idaho Rule of Civil Procedure 24, the Idaho Rules
of Criminal Procedure do not provide a process for intervention. The inability of non-parties to
intervene in a criminal case recognizes that the considerations underlying intervention in a civil


2
        Similarly, other states have repeatedly held that a crime victim is not a party to a criminal
case, despite having statutory and constitutional rights. See State v. Lorenzo, ___ P.3d ___, ___,
301 Or. App. 713, 718 (2020) (holding although crime victim has rights protected by state
constitution, none of those rights purport to make victim party to criminal actions); Cooper v. Dist.
Court, 133 P.3d 692, 705 (Alaska Ct. App. 2006) (noting distinction between protecting crime
victims’ procedural rights and allowing crime victims to participate as independent parties in
criminal prosecution); Lynn v. Reinstein, 68 P.3d 415-417 (Ariz. 2003) (holding that even under
liberal construction of state’s constitution and victim rights statutes, victims are not parties to
defendant’s criminal case).

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case are not applicable to a criminal proceeding. See People v. Ham, 734 P.2d 623, 625 (Colo.
1987).
         No other rule, statute, or constitutional provision allows a crime victim to independently
intervene within a defendant’s criminal case. The Idaho Constitution bestows a crime victim with
the right “[t]o restitution, as provided by law, from the person committing the offense that caused
the victim’s loss.” IDAHO CONST. art. I, § 22(7). However, the Idaho Constitution does not provide
a right for a victim to seek restitution by independently intervening within a defendant’s criminal
case.3
         Because the Idaho Constitution gives crime victims the right “to restitution, as provided by
law,” additional statutory provisions further define the scope of restitution. Relevant here, I.C. 19-
5304(6) provides:
                Restitution orders shall be entered by the court at the time of sentencing or
         such later date as deemed necessary by the court. Economic loss shall be based
         upon the preponderance of evidence submitted to the court by the prosecutor,
         defendant, victim or presentence investigator. Each party shall have the right to
         present such evidence as may be relevant to the issue of restitution, and the court
         may consider such hearsay as may be contained in the presentence report, victim
         impact statement or otherwise provided to the court.
This language is unambiguous; while a crime victim may submit evidence to calculate possible
economic losses as a result of the defendant’s actions, only the parties have the right to file
motions, present such evidence, and seek the amount of restitution submitted.              Therefore,
restitution sought by a motion filed by a non-party within the criminal proceeding is not a process
“as provided by law.” Instead, a party must file the motion for restitution for a trial court to have
the authority to entertain it.
         The State seeking restitution on behalf of crime victims has consistently been the practice
in Idaho. See Keys, 160 Idaho at 96, 369 P.3d at 314 (State submitted affidavit for restitution and
district court ordered restitution); State v. Cottrell, 152 Idaho 387, 390, 271 P.3d 1243, 1246 (Ct.
App. 2012) (State sought restitution and, after arguments from both parties, court ordered
restitution); State v. Hill, 154 Idaho 206, 211, 296 P.3d 412, 417 (Ct. App. 2012) (State filed
request for order of restitution and presented evidence of victim’s evidentiary losses at evidentiary


3
       In recent legislative sessions, efforts to amend the Idaho Constitution to explicitly grant
crime victims standing to assert their rights have failed. See S.J. Res. 102, 2019 Leg., 65th Sess.
(2019); H.J. Res. 8, 2018 Leg., 64th Sess. (2018).

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hearing); State v. Gonzales, 144 Idaho 775, 776-77, 171 P.3d 266, 267-68 (Ct. App. 2007) (State
argued victim was entitled to restitution at sentencing hearing and, later, filed motion for restitution
after crime victim requested restitution in victim impact statement included in presentence
investigation report); State v. Taie, 138 Idaho 878, 879, 71 P.3d 477, 478 (Ct. App. 2003) (State
requested order of restitution and presented victim’s testimony of economic loss and letter from
insurer to support claim). This preserves the nature of criminal proceedings as a process between
the State and the defendant, while protecting a crime victim’s right to a restitution amount that is
properly commensurable to the economic loss caused by the defendant’s criminal actions.
       Allowing a non-party to intervene in a defendant’s criminal proceeding would bring
complicated consequences, including the potential to undermine the critical and distinct role of the
prosecutor. Unlike private counsel, a prosecutor has the unique role as “a minister of justice and
not simply that of an advocate.” Idaho Rules of Professional Conduct, 3.8 cmt.1. While a
prosecutor has a duty to communicate with the crime victim, see IDAHO CONST. art. I, § 22, “[t]he
prosecutor generally serves the public and not any particular government agency, law enforcement
officer or unit, witness or victim.” ABA Standard 3-1.3. In the context of a restitution hearing, a
prosecutor may seek a restitution order primarily to assist crime victims. See State v. Olpin, 140
Idaho 377, 378, 93 P.3d 708, 709 (Ct. App. 2004). However, because restitution may fulfill
deterrent or rehabilitative purposes, a prosecutor may additionally pursue restitution for the benefit
of the State. See id. By allowing a crime victim to independently intervene in a criminal
proceeding to seek restitution, any consideration of interests outside the victim’s own may be
subverted. The constitutional and statutory rights provided to crime victims do not mean a crime
victim has the authority to usurp the prosecutor’s distinct position within a criminal case. See
Lindsay R. v. Cohen, 343 P.3d 435, 437-38 (Ariz. Ct. App. 2015) (holding that allowing counsel
for crime victim to file memorandums of law and conduct restitution hearing would impermissibly
transform criminal sentencing function into civil damages trial).
       Further, allowing counsel for a crime victim to file a motion for restitution within a criminal
case and present the State’s case for restitution without the support of the prosecutor’s office may
give rise to significant conflicts of interest and due process concerns. A defendant’s right to due
process may be violated when a person who is a victim of the crime or who has a personal,
financial, or attorney-client relationship with the victim of the crime prosecutes the criminal case.
See People v. Calderone, 573 N.Y.S.2d 1005, 1009 (N.Y. Crim. Ct. 1991). As a result, it is

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generally recognized that “[a] private attorney who is paid by, or who has an attorney-client
relationship with, an individual or entity that is a victim of the charged crime . . . should not be
permitted to serve as prosecutor in that matter.” ABA Standard 3-2.1(c). This reflects a concern
that self-serving motivations may underlie an attorney’s pursuit of both a civil settlement and a
criminal restitution order to compensate a client for the same economic loss, particularly where
the attorney has a financial stake in the outcome of the proceedings.
       This concern is ameliorated when the State is tasked with protecting the interests of the
non-party victim. Moreover, the State must weigh many factors when determining whether to
pursue restitution on behalf of a crime victim. The prosecutor, as a representative of the state and
the people, is fully capable of bringing to the court’s attention any and all matters that might
possibly bear on a sentencing decision. See Ham, 734 P.2d at 626. Many of the facts in this case
may explain the State’s reticence to participate in the unorthodox process and amply demonstrate
why it is inappropriate for a crime victim to usurp the State’s considerations and independently
intervene within a defendant’s criminal case to pursue a restitution order.
       Here, McKinnie did not simply submit evidence of economic loss for the district court’s
consideration as provided for by I.C. § 19-5304(2) and ask the State to pursue restitution. Instead,
McKinnie presented the motion for restitution independently of the parties to the proceeding.
McKinnie filed the motion for restitution and noticed the motion for hearing, but failed to provide
notice to Johnson or Johnson’s counsel. McKinnie filed transport orders for Johnson and the
victim, incorrectly indicating he was Johnson’s attorney, presented oral argument at the restitution
hearing, and submitted post-hearing briefing in support of his motion for restitution. None of these
actions were made in consultation with, or on behalf of, the prosecutor’s office. Further, McKinnie
pursued restitution after brokering a civil settlement that released Johnson from any additional
financial responsibility. Additionally, at the restitution hearing, the victim, through McKinnie,
conceded he had not paid any of his medical bills with the insurance settlement, the insurance
company had not attempted to recover its expenses from the victim through a lien, and the
insurance company had not subrogated its claims to seek reimbursement from Johnson.
       Here, the crime victim did not have standing because he was not a party in Johnson’s
criminal case and had no right to intervene in the proceedings. Therefore, the motion for restitution
was not properly before the district court and so it was error for the district court to consider it.



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        The State argues I.C. § 19-5304(2) vests the trial court with jurisdictional authority to order
restitution within a criminal case independent of a filing by a party and therefore, the validity of
the court’s order of restitution order does not hinge on whether the crime victim had standing to
file a restitution order. This is incorrect for two reasons. First, the district court’s order of
restitution is discretionary; the court can determine whether to order restitution and in what
amount. State v. Weaver, 158 Idaho 167, 170, 345 P.3d 226, 229 (Ct. App. 2014). Second, if the
district court orders restitution, restitution can only be ordered “for any economic loss which the
victim actually suffers.” I.C. § 19-5304. However, even if the statute was mandatory and not
discretionary, in this case the district court acted solely on the motion of the non-party victim, not
on its independent authority. Therefore, while I.C. § 19-5304(2) vests the trial court with subject
matter jurisdiction to order restitution, the court must act “as provided by law,” which it did not
do in this case.
        Because the third party did not have standing to intervene, the district court also erred in
finding good cause to extend the time in which the motion could be filed. Because no good cause
was established by the State, the district court erred in finding the motion was timely filed.
        Because there was no authority to initiate or conduct the prior restitution proceedings and
we vacate the order of restitution, we do not address whether (1) the victim suffered economic
loss, (2) a restitution request would be timely, (3) Johnson is precluded from pursuing restitution
in the criminal case based on the language of the civil settlement, and (4) whether restitution would
be offset by the civil settlement.
                                                 IV.
                                          CONCLUSION
        Although crime victims have a right to restitution in a criminal case, a crime victim is not
a party to a criminal case and does not have an independent right to intervene in a defendant’s
criminal case. Because the district court’s restitution order was based on a motion filed by a non-
party and because there was no evidence the victim suffered any actual economic loss, the order
of restitution constituted an abuse of discretion. Accordingly, the order of restitution is vacated.
        Judge GRATTON and Judge BRAILSFORD CONCUR.




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