School navigation

National Crime Victim Law Institute

Lindsey v. State, — A.3d —, No. 495, 2014 WL 4236370 (Md. Ct. Spec. App. Aug. 27, 2014).

September 19, 2014

The victim in this case was represented by attorneys for the Maryland Crime Victims’ Resource Center, who fought to protect the victim’s right to have the court’s consideration of his restitution request.

Defendant entered into, and the court accepted, a written plea agreement with the state in which he agreed to plead guilty to one count of attempted robbery with a sentencing cap of 15 years with all but 18 months suspended in exchange for the state dismissing the other counts in the indictment. At sentencing, the victim, who had been shot and seriously injured during the attempted robbery, requested for the first time that defendant be ordered to pay restitution. Defendant objected on the basis that payment of restitution was not included in the plea agreement. The trial court denied the victim’s request, and the victim filed a motion for reconsideration. The trial court denied the victim’s motion on the basis that ordering restitution would be contrary to the plea agreement and an improper increase in sentence. The victim appealed. On appeal, the Maryland Court of Special Appeals found error with both of the trial court’s reasons for denying restitution. First, the court held that the trial court erred as a matter of law when it held that ordering restitution would violate the terms of the plea agreement. The court pointed to the critical fact that the plea agreement called for a split sentence but was silent on the subject of probation, yet defendant did not object to the imposition of probation because probation is implicit in a split sentence. The appeals court reasoned that probation, by definition, is subject to conditions and that restitution is a standard and frequently imposed condition. The court further reasoned that because the victim had a presumptive right to restitution, and the state had no power to waive the victim’s independent right to restitution, defendant could not have entered into the plea agreement with a reasonable expectation that he could not be ordered to pay restitution as a condition of probation. Therefore, the court concluded that the trial court would not have violated the terms of the agreement by ordering restitution. Next, the court held that the trial court also erred as a matter of law in concluding that ordering restitution would be an improper increase in defendant’s sentence under state statute and the federal Double Jeopardy Clause. The court pointed to the recently amended state statute authorizing a victim to file a motion requesting relief within 30 days of a denial of a restitution request or a failure to consider restitution. The statute permits a trial court to enter a judgment of restitution if it finds that it did not consider the victim’s right to restitution or that restitution was improperly denied. Thus, the court reasoned, a defendant cannot have a reasonable expectation of finality in a sentence that does not include restitution until after the 30-day period has passed. Therefore, the court found that the addition of restitution to defendant’s sentence would not have been an impermissible increase in sentence. The appeals court then concluded that the trial court had discretion to order restitution as a condition of defendant’s probation without violating the plea agreement or defendant’s double jeopardy rights. For these reasons, the court held that the trial court had abused its discretion in denying the victim’s motion for reconsideration based on error of law and remanded for further proceedings not inconsistent with the opinion.