This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Chittenden Unit, Criminal Division. James R. Crucitti, J.
Reversed and remanded for further proceedings.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Marshall Pahl, Appellate Defender, and Natalie Wicklund, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
[¶1] Defendant Jason Gorton appeals a trial court order requiring him to pay $33,786.72 in restitution following a conviction for embezzling cigarettes from the store where he was employed. Defendant argues that the State's request for restitution from defendant was time-barred and the court erred in granting the order. Defendant further objects to the order itself on a number of grounds, arguing that: (1) the court erred in requiring restitution beyond the temporal scope of conviction, (2) the court did not take into account defendant's ability to pay, (3) the court failed to find that the loss was uninsured, and (4) the court erroneously based its restitution findings on inadmissible hearsay offered by the State. We reverse and remand to the trial court for a new evidentiary hearing limiting the scope of restitution to the six months reflected in the charge filed by the State against defendant.
[¶2] The facts of this case are as follows. Defendant was employed as a night manager
by Price Chopper grocery store in Essex Junction, Vermont for two years. Over the course of multiple shifts, defendant found and used several lost credit cards to buy gift cards from the store. After some of the cards were reported stolen to police, Price Chopper officials began investigating the thefts and recognized defendant in a surveillance video, using one of the credit cards. Two of Price Chopper's internal loss-prevention agents confronted defendant at the store and questioned him about the cards. During this interview, defendant admitted to using the lost credit cards to purchase $900 worth of gift cards, Christmas gifts and dinners for his daughter. Upon further questioning, defendant also confessed to having stolen various merchandise during his shifts -- namely cartons of cigarettes and some miscellaneous grocery items. A written statement was drafted and signed by defendant stating that in addition to the $900 of fraudulent credit card purchases, defendant " stole an average of eight cartons [of cigarettes] per week for a total of $40,560 over the course of a year and a half" and approximately $10 worth of soda, shampoo, deodorant and body-wash per shift for nine months.
[¶3] A little over a week after this interview, defendant met with a police officer at the Essex Police Department. Defendant told the officer that he did not think he stole as many cartons of cigarettes as initially estimated in the Price Chopper interview, revising the estimate of cartons ...