A divided Indiana Supreme Court ordered a new hearing for a man convicted of burglary whose restitution order had been thrown out by the Court of Appeals because of insufficient evidence to support the amount of the award.
Chief Justice Brent Dickson dissented in a 4-1 opinion issued late Thursday in which the court also determined that restitution orders are subject to Supreme Court review and remand when evidence is lacking.
Carlin Iltzsch was convicted in Marion Superior Court of burglary, adjudicated a habitual offender, and sentenced to 22 years in prison. He also was ordered to pay restitution to the victim of $711.95 for damage to a television and destruction of an antique record collection.
Iltzsch’s attorney at first did not object to the restitution request, but subsequently did, citing his client’s insistence that he was innocent. A divided panel of the Court of Appeals vacated the restitution order because it ruled evidence was lacking. “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,” the COA held, citing Cooper v. State, 831 N.E.2d 1247, 1253-54 (Ind. Ct. App. 2005).
“As Judge (Mark) Bailey pointed out in his dissent, though, it appears the restitution in Cooper involved a claim for lost wages by the parents of the victim that simply were not recoverable under the statute, so there would have been no reason for remand. We do not find Cooper persuasive authority for prohibiting a remand for a restitution hearing under the circumstances of this case,” reads the per curiam opinion in Carlin Iltzsch v. State of Indiana, 49S02-1301-CR-57.
“This case is remanded to the trial court with instructions to conduct a new restitution hearing at which the State will be permitted to present, and Iltzsch will be allowed to confront, any additional evidence supporting the victim’s property loss.”