                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 44177
STATE OF IDAHO,                                        )
                                                       )
                                                               Boise, December 2016 Term
     Plaintiff-Respondent,                             )
                                                       )
                                                               2017 Opinion No. 20
v.                                                     )
                                                       )
                                                               Filed: February 27, 2017
JAMIE LEE NELSON aka RINEHART,                         )
                                                       )
                                                               Stephen W. Kenyon, Clerk
     Defendant-Appellant.                              )
                                                       )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Lynn G. Norton, District Judge.

       District court award of restitution, vacated.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant.
       Brian R. Dickson, Deputy State Appellate Public Defender argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
       Kenneth K. Jorgensen argued.

                           _________________________________
BURDICK, Chief Justice
       Jamie Nelson appeals the Ada County district court’s award of restitution entered under
Idaho Code section 37-2732(k). The Idaho Court of Appeals vacated the restitution award, and
we granted the State’s timely petition for review. Because we conclude the State failed to support
its request for restitution with sufficient evidence, we vacate the restitution award.
                    I.    FACTUAL AND PROCEDURAL BACKGROUND
       In June 2012, Nelson and her husband were charged with (1) possession of a controlled
substance and paraphernalia; and (2) injury to child. They stood trial together. The first trial
ended in a mistrial after the State presented evidence the district court had ordered inadmissible.
A second trial was held in September 2012, and Nelson and her husband were both convicted of
the drug-related charges but acquitted of the injury to child charges.
       At Nelson’s sentencing hearing, the State sought to recoup its prosecution costs under
Idaho Code section 37-2732(k) and requested $4,746. That amount reflects 33.9 hours of work



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billed at $140 per hour. Although a restitution hearing was never held, the district court awarded
$2,535 under Idaho Code section 37-2732(k). The award reflects 39 hours 1 of work billed at $65
per hour. The district court declined to base the award on the State’s request for $140 per hour,
reasoning instead that $65 per hour was reasonable. Nelson appealed, and the State conceded it
had not presented sufficient evidence to support the restitution award. State v. Nelson, No.
40493, 2014 WL 708467, at *3–4 (Ct. App. Feb. 21, 2014). The Court of Appeals vacated the
award and remanded the case for a restitution hearing. Id.
         On remand, the district court held a restitution hearing and permitted the parties to submit
written arguments. The State submitted an unsworn written statement, entitled “Statement of
Costs and Request for Restitution in a Drug Case” (Statement of Costs), as evidence of its
prosecution costs. 2 Again, the State requested $4,746. Nelson objected that the State’s award (1)
would punish her for exercising her Sixth Amendment rights to stand trial and present a defense
under the U.S. Constitution; (2) did not demonstrate that costs for the mistrial were excluded; (3)
did not delineate costs incurred to prosecute Nelson’s husband; (4) did not demonstrate that the
State’s costs incurred on acquitted injury to child charges were excluded; and (5) was excessive
because it did not accurately reflect the prosecutor’s rate of pay.
         At the restitution hearing, the district court noted that the Statement of Costs was “not
sworn.” Even so, the district court rejected Nelson’s arguments and awarded $4,746 to the State.
The district court assessed the award jointly and severally against Nelson and her husband.
Nelson filed another appeal.
         On its second review of the award, the Court of Appeals vacated the award. Again, the
Court of Appeals held that insufficient evidence supported the award. The Court of Appeals
faulted the district court for doing essentially the same thing it did before the first appeal—

1
  As Nelson explains, “[i]t is not clear why the requested amount of time changed from 39 hours to 33.9 hours. . . .
However, checking the calculations with the total amount of restitution the prosecutor was requesting and the rate of
pay he claimed, 33.9 hours appears to be the figure the prosecutor was actually using and the statement of 39 hours
appears to simply be a misstatement.”
2
  The Statement of Cost reads:

         I . . . Deputy Prosecuting Attorney for the State of Idaho, County of Ada, am aware that the Ada
         County Prosecutor’s Office keeps records regarding the attorney time spent prosecuting drug cases
         in anticipation of submitting a request for restitution pursuant to I.C. § 37-2732(k). I have
         reviewed the time log in this case, which documents the prosecutor time spent prosecuting the
         above referenced drug case. The Ada County Prosecutor’s Office spent a minimum of 33.9
         attorney hours, at an attorney rate of $140 per hour prosecuting this case, not including preparation
         and argument for the sentencing hearing. Pursuant to Idaho Code § 37-2732(k), the State requests
         restitution in the amount of $4,746.00.


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basing the award on unsworn representations. Thus, the Court of Appeals declined to remand the
case because the State “already had an additional opportunity to provide substantial and
competent evidence as support for the restitution award.” Id. The Court of Appeals declined to
reach Nelson’s constitutional and vindictive sentencing arguments, finding the evidentiary issue
dispositive. We granted the State’s timely petition for review.
                                II.    STANDARD OF REVIEW
       When addressing a petition for review, this Court will give “serious consideration to the
views of the Court of Appeals, but directly reviews the decision of the lower court.” State v.
Schall, 157 Idaho 488, 491, 337 P.3d 647, 650 (2014).
                                       III.   DISCUSSION
       This appeal brings to light Idaho Code section 37-2732(k). That statute permits the State
to recoup its prosecution costs as restitution, providing as follows:
               Upon conviction of a felony or misdemeanor violation under this chapter
       or upon conviction of a felony pursuant to the “racketeering act,” section 18-7804,
       Idaho Code, or the money laundering and illegal investment provisions of section
       18-8201, Idaho Code, the court may order restitution for costs incurred by law
       enforcement agencies in investigating the violation. Law enforcement agencies
       shall include, but not be limited to, the Idaho state police, county and city law
       enforcement agencies, the office of the attorney general and county and city
       prosecuting attorney offices. Costs shall include, but not be limited to, those
       incurred for the purchase of evidence, travel and per diem for law enforcement
       officers and witnesses throughout the course of the investigation, hearings and
       trials, and any other investigative or prosecution expenses actually incurred,
       including regular salaries of employees. In the case of reimbursement to the Idaho
       state police, those moneys shall be paid to the Idaho state police for deposit into
       the drug and driving while under the influence enforcement donation fund created
       in section 57-816, Idaho Code. In the case of reimbursement to the office of the
       attorney general, those moneys shall be paid to the general fund. A conviction for
       the purposes of this section means that the person has pled guilty or has been
       found guilty, notwithstanding the form of the judgment(s) or withheld
       judgment(s).
I.C. § 37-2732(k).
       In this appeal, we focus on how “the court may order restitution” to the State for
prosecution expenses “actually incurred.” See id. (emphasis added). Thus, restitution under
section 37-2732(k) is discretionary. To determine whether the district court abused its discretion,
this Court evaluates whether the district court: (1) correctly perceived the issue as one of
discretion; (2) acted within the outer boundaries of its discretion and consistently with relevant



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legal standards; and (3) reached its decision by an exercise of reason. Swallow v. Emergency
Med. of Idaho, P.A., 138 Idaho 589, 592, 67 P.3d 68, 71 (2003). The second and third
requirements of the inquiry outlined above require the district court to “base the amount of
restitution upon the preponderance of evidence submitted by the prosecutor, defendant, victim,
or presentence investigator.” State v. Weaver, 158 Idaho 167, 170, 345 P.3d 226, 229 (Ct. App.
2014) (citation omitted). What amount of restitution to award is a question of fact for the district
court, “whose findings will not be disturbed if supported by substantial evidence.” Id.
        Here, the sole “evidence” supporting the restitution award is a one-paragraph form, the
Statement of Costs. The Statement of Costs is problematic for several reasons. First, the
Statement of Costs is a boilerplate, fill-in-the-blank-style form the State has used in other cases.
See State v. Cunningham, slip op. 44176 at 3 (Idaho 2017). The Statement of Costs merely
identifies the defendant, the case number, and the prosecutor. It then states the total number of
attorney hours, the hourly rate, and computes the sum total of the request. It does not contain
itemized time entries explaining the tasks performed or the expenditures made in the particular
case. Nor does the Statement of Costs state that restitution was sought only for expenses actually
incurred in prosecuting the charge resulting in Nelson’s conviction, not those resulting in a
mistrial, acquittal, or Nelson’s husband’s conviction. Although it is signed, the signature does
not purport to certify it as correct.
        The Court of Appeals concluded the Statement of Costs did not constitute evidence. The
Court of Appeals elaborated as follows:
        In a general sense, “evidence” is something (including testimony, documents, and
        tangible objects) that tends to prove or disprove the existence of an alleged fact.
        BLACK’S LAW DICTIONARY 595 (8th ed. 2004). The district court’s
        restitution decision and our review, however, must be based upon substantial and
        competent evidence in the record. Unsworn oral or written representations, even
        those of an officer of the court, are not evidence. See Zepeda v. State, 152 Idaho
        710, 716, 274 P.3d 11, 17 (Ct. App. 2012); State v. Gerardo, 147 Idaho 22, 26,
        205 P.3d 671, 675 (Ct. App. 2009). While the State’s Statement of Costs and
        Request for Restitution in a Drug Case and Motion for Restitution Closing
        Argument were signed, they were unsworn, and therefore do not constitute
        evidence. The very purpose of an evidentiary hearing is to present evidence. Since
        the State here failed to present evidence, there can be no award of restitution.
        Thus, the district court abused its discretion in awarding restitution.
        The State cites us to State v. Weaver, 158 Idaho 167, 345 P.3d 226 (Ct. App. 2014),
contending the district court did not err. In Weaver, the State sought $300 in restitution under



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section 37-2732(k). Id. at 170, 345 P.3d at 229. The State filed a “written accounting of the time
spent prosecuting [the defendant], which was broken into categories comprised of one or more
tenths of an hour that totaled four hours at an hourly rate of $75. This accounting was signed by
the prosecutor assigned to [the] case certifying that the accounting was correct.” Id. The district
court determined that $75 was a reasonable hourly rate within the legal community, and the
parties did not dispute that finding. Id. at 170 n.1, 345 P.3d at 229 n.1. Rather, the defendant
“only specifically challenged the time claimed for [the] first appearance . . . .” Id. The defendant
argued he spent “less than thirty seconds at the defense table,” but the “time listed by the
prosecutor for the first appearance was twelve minutes.” Id. The State countered that even if the
time stated was imprecise, it sufficed as an estimate. Id. The district court agreed, and the Court
of Appeals affirmed, articulating as follows:
       The state’s certified accounting of the time it spent prosecuting the case, even if
       only an estimate, constitutes substantial evidence sufficient to support the district
       court’s award of $300 to the county prosecutor’s office. The accounting parsed
       the prosecutor’s time amongst eleven listed tasks accompanied by a brief
       description of each task and, in many cases, a date on which the task occurred.
       There is little more that Weaver could reasonably expect as evidence in these
       circumstances. The state was not required to prove the time spent on Weaver’s
       case beyond a reasonable doubt; only a preponderance of the evidence was
       required. Although Weaver questioned the accuracy of the state’s accounting, he
       presented no evidence to undermine or contradict that accounting.
Id. at 170–71, 345 P.3d at 229–30.
       Weaver is distinguishable from the restitution award at issue in this appeal. First, the
defendant in Weaver “only specifically challenged the time claimed for [the] first appearance”
but never disputed the hourly rate. Id. at 170, 345 P.3d at 229. But here, the number of hours and
the hourly rate are both disputed. Second, the accounting in Weaver “parsed the prosecutor’s
time amongst eleven listed tasks accompanied by a brief description of each task and, in many
cases, a date on which the task occurred.” Id. That accounting “was signed by the prosecutor
assigned to [the] case certifying that the accounting was correct.” Id. But here, the Statement of
Costs is not so detailed, as it does not itemize tasks like the certified accounting in Weaver. And,
while the Statement of Costs contains the prosecutor’s signature, nothing indicates that signature
purports to certify the Statement of Costs is correct.
       We conclude the restitution award is not supported by evidence. As noted, restitution
under section 37-2732(k) must be based on a preponderance of the evidence, and an award of



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restitution will not be disturbed if supported by substantial evidence. Substantial evidence is
“relevant evidence as a reasonable mind might accept to support a conclusion.” State v. Straub,
153 Idaho 882, 885, 292 P.3d 273, 276 (2012). Based on the above, the State’s unsworn
Statement of Costs does not meet that burden. Indeed, as noted, the Statement of Costs does not
even state that restitution was sought only for expenses actually incurred in prosecuting the
charge resulting in Nelson’s conviction, not those resulting in a mistrial, acquittal, or Nelson’s
husband’s conviction. We therefore hold that unsworn representations, even by an officer of the
court, do not constitute “substantial evidence” upon which restitution under section 37-2732(k)
may be based. 3
        As guidance concerning the correct interpretation of section 37-2732(k), we note that
section 37-2732(k), by its plain terms, grants discretion to award restitution to the State for
prosecution expenses “actually incurred.” An award of restitution under section 37-2732(k) is
not mandatory. When deciding whether restitution is proper, factors to consider include other
fines imposed, victim restitution, assets, and previous and prospective earning abilities.
Additionally, where relevant, the factors set forth under the general restitution statute, Idaho
Code section 19-5304(7), may be considered. See State v. Kelley, slip op. 44178 at 7–8 (Idaho
2017). Moreover, unlike many other fee award statutes, section 37-2732(k) does not permit
recovery of what is “reasonable.” Compare I.C. § 37-2732(k), with I.C. §§ 12-117, -120, and -
121. For example, we recently clarified that clear statutory language permitting recovery of
reasonable attorney fees obviates the burden to prove actual costs incurred because “Idaho law
simply does not equate reasonable attorney fees to actual attorney fees.” Inclusion, Inc. et al. v.
Idaho Dep’t of Health and Welfare, 161 Idaho 239, 385 P.3d 1, 3 (Idaho Nov. 23, 2016). The
same logic governs the interpretation of section 37-2732(k)’s clear and unambiguous terms. At a
minimum, measuring up to section 37-2732(k)’s burden to prove expenses actually incurred will
generally require sworn statements that delineate the time spent performing specific tasks.
        We vacate the district court’s award of restitution. Because the evidence issue is
dispositive, we do not reach the additional arguments Nelson raises. We decline to remand the
3
 This conclusion finds support from our opinions in the sentencing context. See State v. Coutts, 101 Idaho 110, 113,
609 P.2d 642, 645 (1980) (explaining that sentencing judge cannot consider unsworn representations if a formal
sentencing hearing is requested). Additional support arises from our opinions in the civil arena. See, e.g., Rocky
Mountain Power v. Jensen, 154 Idaho 549, 552, 300 P.3d 1037, 1040 (2012) (declining to admit document as an
“affidavit” because it was unsworn); Heinze v. Bauer, 145 Idaho 232, 236, 178 P.3d 597, 601 (2008) (“Normally, a
party would not be entitled to rely on an unsworn document that he or she authored in order to demonstrate the
existence of a genuine issue of material fact.”).


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case. The State already had two opportunities to claim restitution, and remanding for a third
opportunity would be improper.
                                     IV.    CONCLUSION
       We vacate the restitution award for lack of evidence. Because the State already had two
opportunities to claim restitution, we decline to remand the case.
       Justices EISMANN, W. JONES, HORTON and J. JONES PRO TEM, CONCUR.




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