Criminal Restitution - Victim's Rights in General: The States' Ability to Put the Victim in the Same Position as They Were in before the Crime Occurred
![handle is hein.journals/nordak97 and id is 123 raw text is: CRIMINAL RESTITUTION - VICTIM'S RIGHTS IN GENERAL:
THE STATES' ABILITY TO PUT THE VICTIM IN THE SAME
POSITION AS THEY WERE IN BEFORE THE CRIME
OCCURRED
State v. Conry, 2020 ND 247, 951 N.W.2d 226.
ABSTRACT
In State v. Conry, the North Dakota Supreme Court interpreted a North
Dakota statute that impacts the state's ability to provide restitution to victims
of a criminal offense. The court held the State does not have a substantial
right to appeal the lower court's decision regarding the imposition of restitu-
tion on behalf of the victim in a criminal case. As a case of first impression
in North Dakota, the court relied on Nebraska case law, which found a three-
factor test practical. [W]hether the State possesses a substantial right to res-
titution depends on: (1) whether an order affects the right to restitution with
finality; (2) whether the right could otherwise effectively be vindicated; and
(3) whether the right is significantly undermined or indefinitely lost without
appellate review. The court held the first factor indicated the prosecution's
restitution would be a substantial right of the state, and not the individual as
it was an appeal from a final order. The second and third factors were found
to disfavor the state having a substantial right to appeal a restitution decision
from the lower court as victims can commence a civil case. As two out of the
three factors indicated this was not a substantial right of the state, the court
determined the prosecution did not have the right to appeal. The court did not
have jurisdiction to hear the appeal brought forward from the prosecution
questioning the decision of the lower court not to issue the restitution on be-
half of the victim. The prosecution did not have the ability to mention the
intersection of the statute regarding the rights of the state to appeal and the
rights of the victim, as indicated in Marsy's Law. Examining other states'
statutes to help determine substantial rights of the State, the North Dakota
Supreme Court determined, with finality, the statute regarding the ability of
the prosecution to appeal is applied to restitution. The application of North
Dakota Century Code section 29-28-07 shows the statute supersedes Marsy's
Law regarding the state's, not the victim's, rights. Despite Marcy's Law giv-
ing victims full right to restitution, the prosecution cannot use those rights as
a way to circumvent the state's limited right to appeal restitution decisions.
As a case of first impression, Conry outlines the limits of what prosecutors
can appeal after the addition of Marsy's Law, which expands victims' rights.](ViewImageLocal?handle=hein.journals/nordak97&div=8&collection=&method=preview&ext=.png&size=3)
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