explaining that issues not raised before trial court are waived on appeal
How later courts described this case
- explaining that issues not raised before trial court are waived on appeal
- same, because “[r]estitution is part of sentencing”
Written by the judges who cited it.
The opinion
Crawford, J.,
¶ 34. dissenting. I agree fully with the majority’s holding that the Vermont Rules of Evidence do not apply to restitution hearings. I dissent only on the issue of evidence of an uninsured loss.
¶ 35. In the course of the restitution hearing, the victim testified that her own car — the subject of the property damage claim — was insured. Because uninsured motorist coverage is mandatory in Vermont, subject to a $150 deductible, the evidence was unmis *508 takable that the victim had insurance coverage available to her that would respond to this loss. 23 V.S.A. § 941(a). Any reluctance she may have had to make use of her own insurance coverage is irrelevant. The restitution statute limits the use of funds held by the Vermont Center for Crime Victim Services to losses for which there is no coverage. See 13 V.S.A. § 7043(a)(l)-(2) (stating that restitution may be awarded to victim that has suffered “a material loss,” defined as “uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses” (emphases added)). Although defendant failed to pursue this issue either at trial or on appeal, the trial court’s error in ordering restitution in the face of insurance required by statute meets criteria for “plain error” and requires a remand on that issue. See State v. Simmons, 2011 VT 69, ¶ 12 , 190 Vt. 141 , 27 A.3d 1065 (explaining that plain error lies where error is both obvious and results in a miscarriage of justice if this Court does not recognize it).
¶ 36. I am authorized to state that Justice Skoglund joins this dissent.