McEwan v. State
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The Supreme Court vacated certain portions of the order of the district court fixing restitution after Defendant pleaded no contest to obtaining welfare benefits by misrepresentation.
Following Defendant’s no-contest plea, the district court fixed restitution at $18,733. Defendant filed a motion requesting that the district court find she was unable to pay the restitution. After a hearing, the district court issued an order that fixed the amount of Defendant’s restitution at $18,733 but did not require Defendant to pay it, finding that she lacked the ability to do so. Nevertheless, the district court allowed the State to reduce $18,733 to a civil judgment. The Supreme Court held (1) because the district court did not order restitution, it erred as a matter of law when it allowed the State to reduce $18,733 to a civil judgment; and (2) the district court erred as a matter of law by failing either to order restitution or specifically find that there exists no reasonable probability that Defendant will be able to pay restitution in the future.
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