[T]he only evidence supporting the trial court’s restitution order is the “Victim’s Impact Statement” contained in the PSI. PSI p. 13. The statement provides that the probation officer who prepared the PSI contacted Whittemore by mail to inform him about the possibility of restitution, among other things. The statement provides further that Whittemore “advised” that nothing had been taken during the burglary, but that Iltzsch had “destroyed his antique record collection valued at approximately $300.00.” Id. The statement provided further that Whittemore indicated that his “television had to be replaced and the loss was $411.95.”1 Id. Thus, the only evidence supporting the restitution order is the probation officer’s secondhand account of Whittemore’s bare, unsworn assertions that his property had been damaged and that his total loss was $711.95, without any supporting documentation or testimony, and without any explanation of how the property was damaged or how Whittemore arrived at these valuations.
With respect to the record collection, the PSI does not explain how the records were damaged, or provide an itemized statement of how many records there were and their age or type, or explain the basis for Whittemore’s valuation. Absent any evidence to the contrary, we can only come to the conclusion that Whittemore’s valuation of the record collection was based on mere speculation and conjecture.
As to the television, the PSI simply states that the television “had to be replaced” and that “the loss” amounted to $411.95. Whittemore testified at trial that he found his television lying screen-down on the floor immediately after the burglary, but he did not testify that the television was damaged and to what extent. And it is unclear whether the $411.95 figure represents the amount Whittemore originally paid for the television, his calculation of its depreciated value as of the date of the burglary, or the amount Whittemore paid for a new television. And if the figure represents the replacement cost of the television, the State set forth no evidence establishing that the new television was comparable in quality to the allegedly damaged one. . . . .
We also find it troubling that here, like in J.H., it appears that the defendant was not provided with the information that formed the basis of the restitution order until shortly before the sentencing hearing. The trial court ordered the PSI on November 16, 2011, the date of Iltzsch’s trial. The PSI is file-stamped November 29, 2011—the day before Iltzsch’s sentencing hearing. On the date of Iltzsch’s sentencing hearing, the trial court noted that Iltzsch was brought “directly into the court room so he could read the [PSI] over with his attorney.” Tr. p. 84. Thus, it appears that Iltzsch did not have a meaningful opportunity to investigate the assertions made in the PSI. Indeed, it is unclear whether Iltzsch was even on notice prior to the sentencing hearing that the State intended to request a restitution order. However, this issue could have been remedied by making a request for a continuance, which Iltzsch’s counsel failed to do.
The State bore the burden of establishing the validity of the claimed restitution amounts. The State could accomplish this in a number of ways, including: (1) eliciting sworn testimony from the victim at the trial or sentencing hearing, (2) obtaining an affidavit from the victim, or (3) introducing documentation of the claimed damages, such as photographs, appraisals, estimates, or receipts, into evidence. Here, the State made no effort whatsoever to establish the validity of the unsworn, unsupported hearsay assertions attributed to Whittemore in the PSI, but instead, simply asked the court to enter a restitution order in the amount of $711.95 as reflected in the PSI. We conclude that more was required. Accordingly, we hold that the trial court abused its discretion in entering the restitution order.
. . . .
Finally, we address the State’s argument that, even if we conclude that the trial court abused its discretion in entering the restitution order, the proper remedy is remand for a new restitution hearing. There is support in our caselaw for this proposition. . . . .
The State had a full and fair opportunity to obtain and present evidence concerning Whittemore’s actual loss at Iltzsch’s sentencing hearing, but failed to do so. We believe that allowing the State to conduct a new restitution hearing and to present additional evidence concerning the loss would allow the State an inappropriate second bite at the apple. We therefore conclude that the State is not entitled to hold a new restitution hearing, and remand with instructions for the trial court to vacate its restitution order. We acknowledge that Whittemore must now resort to civil process if he wishes to seek redress for his losses. However, this remedy will require nothing more than what the law requires: sufficient, admissible evidence to support his claims.
ROBB, C.J., concurs.
BAILEY, J., dissents with opinion:
A restitution order is much more effective in collecting damages than any civil suit, and following the majority’s approach simply victimizes Whittemore once more while imposing additional, unnecessary burdens on the trial court. I would remand this matter to the trial court to require the State to do its job and pursue restitution for Whittemore with competent evidence, or otherwise advise the court that it does not intend to pursue restitution on the victim’s behalf. I must therefore respectfully dissent.