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Restitution: Iltzsch v. State (Ind. Jan. 24, 2013)

Iltzsch v. State (Ind. Jan. 24, 2013)

In this opinion, the Supreme Court reached two conclusions regarding restitution proceedings. First, the Court concluded that the State had introduced insufficient evidence to support a restitution award. Second, the Court concluded that remand was appropriate to allow the State and the Defendant the opportunity to introduce further evidence on the restitution award.

Justice Dickson dissented, agreeing that evidence was insufficient to support the award, but disagreeing that remand was appropriate. Justice Dickson believed that remand violated double jeopardy principles. Justice Dickson stated: “When on appeal the quantum of evidence presented by the State is found insufficient to satisfy its burden of proof on an issue, permitting the State a second opportunity to overcome its deficiency in proof is inconsistent with principles prohibiting double jeopardy.” (citing Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988); Lambert v. State, 534 N.E.2d 235, 237 n.2 (Ind. 1989).

The majority opinion did not stated that remand would always be appropriate. Instead, the majority stated that an appellate court may remand for further evidentiary proceedings “when appropriate.” Therefore, this opinion should not be interpreted as guaranteeing the State what the Court of Appeals had described as “an inappropriate second bite at the apple.”

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