State v. Boothe

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-1233
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1233 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Stokes County Nos. 12 CRS 50761-66, 50768 CHARLES JUSTIN BOOTHE

Appeal by defendant from judgments entered 8 August 2013 by

Judge A. Moses Massey in Stokes County Superior Court. Heard in

the Court of Appeals 7 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General David L. Gore, III, for the State.

Jon W. Myers for defendant-appellant.

ELMORE, Judge.

On 10 October 2013, pursuant to a plea agreement, Charles

Justin Boothe (defendant) pleaded guilty to six counts of

breaking and/or entering a motor vehicle, one count of breaking

and/or entering, one count of possession of stolen goods, one

count of larceny of a motor vehicle, six counts of injury to

personal property, one count of injury to real property, and one

count of first-degree trespass. The charges were consolidated -2- into two judgments and the trial court sentenced defendant to

consecutive active terms of eleven to twenty-three months

imprisonment and eight to nineteen months imprisonment. The

trial court also ordered defendant to pay restitution in the

amount of $4,500.00. Defendant gave notice of appeal in open

court.

On appeal, defendant argues the trial court erred in

ordering payment of a restitution amount not supported by

competent evidence. We agree.

“[T]he amount of restitution recommended by the trial court

must be supported by evidence adduced at trial or at

sentencing.” State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d

192, 196 (1995) (citation omitted). In the present case, the

prosecutor stated that the victims indicated “there’s 3,500 in

damages that’s not covered by insurance and they had a $1,000

deductible,” and “we’re looking at about $4,500 covering

restitution.” However, review of the record reveals that no

evidence was presented which supports the figure offered by the

State. This Court has held that the “[u]nsworn statements of a

prosecutor, standing alone, cannot support an award of

restitution.” State v. McNeil, 209 N.C. App. 654, 668, 707 -3- S.E.2d 674, 684 (2011) (citing State v. Buchanan, 108 N.C. App.

338, 341-42, 423 S.E.2d 819, 821 (1992)).

Further, the State’s argument that defendant’s silence or

lack of objection to the presentation of the restitution

worksheet constitutes a stipulation to the restitution amount is

without merit. See State v. Mauer, 202 N.C. App. 546, 552, 688

S.E.2d 774, 778 (2010) (holding defendant’s silence does not

constitute a stipulation to the amount of restitution).

Accordingly, the restitution portion of the judgment must be

vacated and remanded to the trial court for redetermination.

Remanded for redetermination of restitution.

Judges McGEE and DAVIS concur.

Report per Rule 30(e).