               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 41270

STATE OF IDAHO,                                  )
                                                 )    2014 Opinion No. 52
       Plaintiff-Respondent,                     )
                                                 )    Filed: July 9, 2014
v.                                               )
                                                 )    Stephen W. Kenyon, Clerk
CHRISTOPHER THOMAS WEAVER,                       )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Order of restitution, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Christopher Thomas Weaver appeals from the district court’s order of restitution entered
following Weaver’s guilty plea to possession of a controlled substance. Specifically, Weaver
alleges that the district court abused its discretion by awarding restitution without substantial
evidence and by refusing to extend the time for payment of the restitution debt. For the reasons
set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       After taking Weaver into custody on an outstanding warrant, an officer discovered a
morphine sulfate pill in Weaver’s vehicle during an inventory search. Weaver was subsequently
charged with possession of a controlled substance, I.C. § 37-2732(c)(1), to which he pled guilty
pursuant to a plea agreement. The district court sentenced Weaver to a unified term of seven
years, with a minimum period of confinement of one year. The district court also ordered



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Weaver to pay restitution to several law enforcement agencies pursuant to I.C. § 37-2732(k),
which included $300 to the county prosecutor’s office for the four hours the prosecutor claimed
were spent on Weaver’s case. The restitution order did not list a payment deadline or other
payment terms. Shortly thereafter, the district court clerk’s office filed an affidavit and notice of
failure to pay, stating that Weaver had failed to pay his debt. The notice also stated that,
pursuant to statute, the debt would be turned over to a collection agency and a collection fee
added if the debt was not paid within thirty days.
       Weaver filed an objection to the restitution order. At a hearing on the objection, Weaver
requested more time to pay and challenged for lack of evidence the four hours the county
prosecutor claimed was spent prosecuting Weaver. The state presented testimony from the
county prosecutor elaborating on the time breakdown originally submitted with the restitution
request.   Based on this evidence, the district court found that the restitution amount was
reasonable. The district court treated Weaver’s request for more time to pay his restitution debt
as an I.C.R. 35 motion for leniency and denied the request, concluding that the district court did
not have jurisdiction to dictate how the clerk’s office performed its statutory duty to collect
debts. Weaver appeals.
                                                  II.
                                             ANALYSIS
       Weaver contends that the district court abused its discretion in two ways: first, in the
amount of restitution ordered because substantial evidence did not support the $300 awarded to
the county prosecutor’s office; and second, in denying Weaver’s request for more time to pay his
restitution debt by failing to recognize that the district court had discretion to do so.
A.     Restitution Amount
       Restitution may be ordered by the district court under I.C. § 37-2732(k) once a defendant
is convicted of, or pleads guilty to, a crime under the Uniform Controlled Substances Act, Title
37, Chapter 27 of the Idaho Code. State v. Gomez, 153 Idaho 253, 257-58, 281 P.3d 90, 94-95
(2012). Idaho Code Section 37-2732(k) provides, in pertinent part:
               Upon conviction of a felony or misdemeanor violation under this
       chapter . . . 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 . . . county and city prosecuting attorney offices. Costs shall
       include, but not be limited to . . . any other investigative or prosecution expenses
       actually incurred, including regular salaries of employees. . . . A conviction for

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       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).
Because I.C. § 37-2732(k) is short on specific guidance regarding the nature of a restitution
award or the procedure to obtain such an award, we are guided by the general restitution statute,
I.C. § 19-5304. Gomez, 153 Idaho at 258, 281 P.3d at 95; State v. Mosqueda, 150 Idaho 830,
833-34, 252 P.3d 563, 566-67 (Ct. App. 2010).
       The decision whether to order restitution, and in what amount, is within the discretion of
a trial court, guided by consideration of the factors set forth in I.C. § 19-5304(7) and by the
policy favoring full compensation to crime victims who suffer economic loss.               State v.
Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct. App. 2002); State v. Bybee, 115 Idaho 541,
543, 768 P.2d 804, 806 (Ct. App. 1989). Thus, we will not overturn an order of restitution unless
an abuse of discretion is shown. Richmond, 137 Idaho at 37, 43 P.3d at 796. When a trial
court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered
inquiry to determine: (1) whether the lower court correctly perceived the issue as one of
discretion; (2) whether the lower court acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it; and (3) whether
the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598,
600, 768 P.2d 1331, 1333 (1989).
       To meet the second and third requirements of this analysis, the trial court must base the
amount of restitution upon the preponderance of evidence submitted by the prosecutor,
defendant, victim, or presentence investigator. I.C. § 19-5304(6). The determination of the
amount of restitution is a question of fact for the trial court whose findings will not be disturbed
if supported by substantial evidence. State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398, 401
(2011); State v. Hamilton, 129 Idaho 938, 943, 935 P.2d 201, 206 (Ct. App. 1997). Substantial
evidence is such relevant evidence as a reasonable mind might accept to support a conclusion.
State v. Straub, 153 Idaho 882, 885, 292 P.3d 273, 276 (2013).
       Here, the district court granted the state’s request for restitution to the county
prosecutor’s office under I.C. § 37-2732(k) in the amount of $300. This amount was based on a
written accounting of the time spent prosecuting Weaver, which was broken into categories




                                                 3
comprised of one or more tenths of an hour that totaled four hours at an hourly rate of $75. 1 This
accounting was signed by the prosecutor assigned to Weaver’s case certifying that the
accounting was correct. At the hearing on Weaver’s objection to the restitution order, Weaver
challenged the accuracy of the time claimed by the prosecutor.            However, Weaver only
specifically challenged the time claimed for his first appearance, asserting that he spent less than
thirty seconds at the defense table. In contrast, the time listed by the prosecutor for the first
appearance was twelve minutes. In response, the state admitted that the four hours was an
estimate. However, it argued that spending more time precisely tracking time spent on the case
would actually inflate the amount, as doing so would only lead to the inclusion of additional
times not currently accounted for and would, in itself, require more time to accomplish. The
district court agreed with the state’s assessment that more attorney time was involved than
Weaver saw, including preparation time and time traveling to and from the courtroom, even for
simple things like attending a first appearance.
       We agree with the district court’s conclusion. 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. Accordingly, Weaver has
failed to show the district court abused its discretion by awarding $300 in restitution to the
county prosecutor’s office.
B.     Discretion to Extend Payment Time
       Weaver also argues that the district court abused its discretion in denying his request to
extend the time for payment of his restitution debt because the district court failed to recognize
that the issue was a matter of discretion. The district court construed Weaver’s request as an



1
        The district court initially determined that the hourly rate of $75 was reasonable within
the legal community. Weaver does not challenge this determination on appeal.

                                                   4
I.C.R. 35 motion for leniency and denied the request, concluding that the district court lacked
jurisdiction to dictate how the clerk’s office performed its statutory duty to collect debts.
       Initially, we note that a criminal defendant may not seek relief from a restitution order
through an I.C.R. 35 motion. State v. Ferguson, 138 Idaho 659, 661, 67 P.3d 1271, 1273 (Ct.
App. 2002); Bybee, 115 Idaho at 542 n.1, 768 P.2d at 805 n.1. Instead, a defendant may, within
forty-two days of the entry of the restitution order, appeal the order or request relief from the
order in accordance with the Idaho Rules of Civil Procedure relating to relief from final orders.
I.C. § 19-5304(10); Bybee, 115 Idaho at 542 n.1, 768 P.2d at 805 n.1. Thus, the district court
erred in characterizing Weaver’s request as a Rule 35 motion for leniency. However, the district
court’s characterization does not affect the challenge Weaver makes on appeal--namely, that the
district court failed to recognize that it had discretion to extend the time for payment of Weaver’s
restitution debt.   Because Weaver raised this issue during a hearing brought pursuant to
I.C. § 19-5304(10), we will address it on appeal.
       Idaho Code Section 37-2732(k) specifically provides that “the court may order restitution
for costs incurred by law enforcement agencies in investigating the violation.” The word “may”
is permissive and denotes the right to exercise discretion. Mosqueda, 150 Idaho at 835, 252 P.3d
at 568. Thus, the trial court has the discretion to deny all or part of the state’s restitution request
if, for example, it determines that the connection between the investigative costs and the
conviction is tenuous or the costs are inflated or unreasonable. Id. Moreover, under the general
restitution statute, the trial court also has discretion over whether to order restitution and in what
amount. Richmond, 137 Idaho at 37, 43 P.3d at 796; Bybee, 115 Idaho at 543, 768 P.2d at 806.
       However, this does not equate to discretion to dictate how the restitution order is
executed upon by the victim--in this case, the county prosecutor’s office--after entry of the
restitution order. 2 Instead, I.C. § 19-5304 establishes the procedure through which the courts



2
        We note, as did the district court, that the restitution permitted under I.C. § 37-2732(k)
does not involve a “victim” in the traditional sense. However, this does not mean that the
entities identified in the statute are not victims for purposes of the general restitution statute. The
statute defines victim as “a person or entity, who suffers economic loss or injury as the result of
the defendant’s criminal conduct.” I.C. § 19-5304(1)(e)(i) (emphasis added). The term
economic loss includes “direct out-of-pocket losses or expenses . . . resulting from the criminal
conduct.” I.C. § 19-5304(1)(a) (emphasis added). Thus, the definition of victim under the
general restitution statute is broad enough to encompass the law enforcement entities identified

                                                  5
order restitution regardless of whether a criminal is incarcerated or placed on probation.
I.C. § 19-5304(5); Straub, 153 Idaho at 886, 292 P.3d at 277. The statutory language makes
clear that a court’s power to order restitution is limited to that provided by the statute. Straub,
153 Idaho at 887, 292 P.3d at 278. Under I.C. § 19-5304(4), a restitution order “shall be due and
owing at the time of sentencing or at the date the amount of restitution is determined, whichever
is later.” This language prohibits the district court from dictating when a restitution judgment
may be executed upon. The district court may delay entering a restitution order for a reasonable
amount of time if that is deemed necessary. I.C. § 19-5304(6); Ferguson, 138 Idaho at 662, 67
P.3d at 1274. However, the district court does not have the discretion to dictate when or how the
restitution order may be enforced after it is entered. 3 That function is specifically entrusted to
the victim or the clerk of the district court. See I.C. §§ 19-5305(1) (restitution order may be
recorded and executed upon as a civil judgment); 19-5305(2) (“The clerk of the district court
may take action to collect on the order of restitution on behalf of the victim and . . . may use the
procedures set forth in section 19-4708, Idaho Code, for the collection of the restitution.”); 19-
4708 (providing the procedure for collection of debts, all of which are directed to the clerks of
the district court under the direction of the Idaho Supreme Court).
       Weaver argues that, because the district court has discretion to dictate the payment
schedule and amount of restitution required as a condition of probation and because
I.C. § 37-2732(k) allows wider discretion than the general restitution statute, the district court
may likewise dictate the payment schedule and amount of restitution required under I.C.
§ 37-2732(k) even when probation is not ordered. We disagree. A court may exercise wide
discretion both in deciding whether to impose probation and in deciding if the terms and




in I.C. § 37-2732(k). Moreover, I.C. § 37-2732(k) has the practical effect of making the entities
it identifies victims for the purpose of the restitution awards provided for in that statute.
3
        The only exception to this is that the district court may direct payment of the restitution to
the clerk of the district court for distribution to a victim in a manner the court deems just under
I.C. § 19-5304(5). This does not mean that the district court may direct how or when the debt is
collected by the clerk’s office on behalf of the victim, just as it could not direct how or when the
victim could directly enforce the judgment. See State v. Cottrell, 152 Idaho 387, 397, 271 P.3d
1243, 1253 (Ct. App. 2012) (noting that, under I.C. §§ 19-5304(2), (5) and 19-5305, a victim
may enforce a restitution award like any civil judgment, outside and independent of the criminal
court).

                                                  6
conditions of probation will include restitution payments. I.C. § 19-2601(2); I.C.R. 33(d)(1);
State v. Wagenius, 99 Idaho 273, 279, 581 P.2d 319, 325 (1978); State v. Cottrell, 152 Idaho 387,
397, 271 P.3d 1243, 1253 (Ct. App. 2012). This includes establishing restitution installment
payments and deadlines as a condition of probation. See Cottrell, 152 Idaho at 399, 271 P.3d at
1255. However, restitution orders under I.C. § 19-5304(2) are distinct from orders for victim’s
compensation that may be included as terms of probation under I.C. § 19-2601(2). State v.
Parker, 143 Idaho 165, 168, 139 P.3d 767, 770 (Ct. App. 2006). The latter statute authorizes a
trial court to place a defendant on probation under such terms and conditions as it deems
necessary and expedient and is designed to give courts maximum flexibility to fashion the
sentence most appropriate to the individual defendant. State v. McCool, 139 Idaho 804, 807, 87
P.3d 291, 294 (2004); Wagenius, 99 Idaho at 279, 581 P.2d at 325; Parker, 143 Idaho at 168,
139 P.3d at 770. The broad language of I.C. § 19-2601 does not include the limitations found in
I.C. § 19-5304 for restitution orders. Parker, 143 Idaho at 168, 139 P.3d at 770. Thus, a court
has wider discretion under I.C. § 19-2601(2) to order monetary compensation to victims as a
condition of probation than it has under the general restitution statute. Parker, 143 Idaho at 168,
139 P.3d at 770.
       As previously noted, we look to the general restitution statute for guidance in determining
the nature of and procedure for restitution awards provided under I.C. § 37-2732(k). Gomez, 153
Idaho at 258, 281 P.3d at 95; Mosqueda, 150 Idaho at 833-34, 252 P.3d at 566-67. Thus, we
conclude that the discretion afforded under I.C. § 37-2732(k) is likewise more limited in
comparison to the wider discretion I.C. § 19-2601(2) provides. Moreover, a court’s authority in
awarding restitution under I.C. § 37-2732(k) is circumscribed by I.C. § 19-5304. See Straub,
153 Idaho at 887, 292 P.3d at 278. Idaho Code Section 19-5304 does not provide a court
authority to dictate the means by which a restitution order may be collected, including extending
time for payment, after the order is entered. Instead, that authority is statutorily entrusted to the
clerk of the district court. As a result, the district court correctly determined that it did not have
discretion to dictate the manner of collection by extending time for payment after the restitution
order was entered; therefore, the district court did not abuse its discretion by denying Weaver’s
request on that basis.




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                                                III.
                                         CONCLUSION
       Weaver has failed to show that the district court abused its discretion either in the amount
of restitution awarded or in its denial of Weaver’s request for more time to pay his restitution
debt. Accordingly, we affirm the district court’s order of restitution entered following Weaver’s
guilty plea to possession of a controlled substance.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.




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