2023 UT App 112

THE UTAH COURT OF APPEALS

UTAH OFFICE FOR VICTIMS OF CRIME,

Limited-Purpose Party/Appellant,

v.

NICHOLAS EZEKIEL HEMBREE,

Appellee.

Opinion

No. 20220466-CA

Filed September 28, 2023

Eighth District Court, Vernal Department

The Honorable Edwin T. Peterson

No. 191800614

Sarah E. Goldberg,

Attorney for Limited-Purpose Party/Appellant

Ramon Ortiz, Debra M. Nelson, and Benjamin Miller, 

Attorneys for Appellee Nicholas Ezekiel Hembree

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Nicholas Ezekiel Hembree pleaded guilty but mentally ill 

to two first-degree felonies and two third-degree felonies. The 

district court did not address restitution at the sentencing hearing, 

but the court’s minutes entered after the hearing noted that no 

restitution was being sought under the plea agreement. After 

sentencing, the Utah Office for Victims of Crime (UOVC) 

submitted a motion for restitution, which the court denied. UOVC 

sought reconsideration of the denial, which the court also denied. 

UOVC now appeals the court’s denial of its request for restitution, 

arguing the court erred by refusing to order Hembree to pay 

restitution. We agree and therefore vacate the court’s order and 

remand the matter to the district court for further proceedings.
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BACKGROUND

¶2 In October 2019, soon after Hembree was charged with five 

felony counts, UOVC initiated contact with the Uintah County 

Attorney’s Office to inform the prosecutor assigned to the case 

(Prosecutor) that it had approved a reparation award to the victim 

and would be seeking reimbursement. This initial letter included 

a request from UOVC for Prosecutor’s assistance in collecting 

restitution for the amounts UOVC had paid on behalf of the 

victim. Thereafter, UOVC sent numerous updated restitution 

notices to Prosecutor, informing Prosecutor that the victim had 

received a total of $2,119.33 from UOVC for medical-related 

expenses.

¶3 In August 2021, Hembree pleaded guilty but mentally ill to 

several of the charges. At the change of plea hearing, neither the 

district court nor the parties discussed restitution. However, 

Hembree acknowledged in his written statement in support of 

guilty plea (plea agreement) that he “may be ordered to make 

restitution to any victim(s) of [his] crimes, including any 

restitution that may be owed on charges that are dismissed as part 

of a plea agreement.” The plea agreement did not otherwise 

address restitution.

¶4 Hembree was sentenced to prison in January 2022. At the 

sentencing hearing, the district court asked Prosecutor for victim 

input on sentencing. In response, Prosecutor indicated that the 

direct victim wanted Hembree to be incarcerated; however, 

Prosecutor did not indicate that the direct victim was seeking 

restitution, and the court did not discuss the issue of restitution

with the parties. Nevertheless, the minutes from that hearing note 

that “[r]estitution is not being sought in this matter as per the plea 

agreement.”

¶5 Approximately two weeks after the sentencing hearing, 

UOVC filed a motion for restitution seeking $2,119.33 in 
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20220466-CA 3 2023 UT App 112

restitution. Neither party opposed the motion. Nevertheless, the 

district court did not hold a hearing on the motion and denied it 

by returning UOVC’s proposed order “not signed” and without 

providing any justification for the denial. UOVC then filed a 

motion to reconsider, which the court denied in a written order. 

In the order, the court explained it was denying the motion to 

reconsider based on the court’s belief that Prosecutor’s failure to 

address restitution before judgment bound UOVC as a fellow 

“State” agency to the terms of the plea agreement, which terms 

“did not include restitution.” As such, the court concluded that 

UOVC’s restitution request was “untimely and potentially 

violative of [Hembree’s] due process rights and simply not in the 

fundamental interests of justice.”

ISSUE AND STANDARD OF REVIEW

¶6 UOVC appeals the district court’s denial of its postsentencing restitution request. “We will not disturb a district 

court’s restitution order unless it exceeds that prescribed by law 

or [the court] otherwise abused its discretion. But we review a 

district court’s interpretation of restitution statutes for 

correctness.” State v. Hamilton, 2018 UT App 202, ¶ 15, 437 P.3d 

530 (quotation simplified).

ANALYSIS

I. This Court Has Jurisdiction Over This Appeal

¶7 To begin, we must consider whether we have jurisdiction 

over this appeal. Hembree argues that this court lacks jurisdiction 

because UOVC appealed from the wrong order. Specifically, 

Hembree contends that UOVC should have appealed from the 

sentencing order rather than the district court’s denial of its postsentencing motion for restitution. This argument is incorrect for 

two primary reasons.
Office for Victims of Crime v. Hembree

20220466-CA 4 2023 UT App 112

¶8 First, the district court’s sentencing order is distinct from 

its order denying restitution. Utah law addresses sentencing and 

restitution determinations separately and allows for sentencing 

and restitution to be imposed at different times. See Utah Code 

§ 77-38b-205(5). Section 77-38b-205(1) of the Utah Code states, “If 

a defendant is convicted, . . . the court shall order a defendant, as 

part of the sentence imposed . . . , to pay restitution to all victims

. . . .” Id. § 77-38b-205(1). While the availability of restitution 

hinges on a conviction, restitution can be determined and 

imposed after sentencing. See id. § 77-38b-205(5). Furthermore, the 

Utah Supreme Court has acknowledged that “orders of complete 

restitution . . . [are] separately appealable from a criminal 

sentence.” State v. Mooers, 2017 UT 36, ¶ 6, 424 P.3d 1. In 

Hembree’s case, restitution was not addressed by the parties at 

sentencing, except for in the plea agreement, which both parties 

agree fails to explicitly indicate that Hembree did not have to pay 

restitution. Moreover, because restitution was not formally 

ordered as part of Hembree’s sentence, there was no restitution 

order for UOVC to appeal. The only final and definitive decision 

regarding restitution was the district court’s denial of UOVC’s 

motion for restitution. Accordingly, UOVC’s appeal from this 

order was proper, and this court has jurisdiction to hear this case.1

¶9 Second, UOVC is not a traditional party to the criminal case 

and did not have standing to appeal the sentencing order. Under 

Utah law, only parties to a criminal case can bring a direct appeal. 

See Utah Code § 77-18a-1; see also State v. Sun Surety Ins. Co., 2004 

UT 74, ¶ 9, 99 P.3d 818 (explaining that only “a party to the 

criminal case” may “bring a direct appeal”). And as our supreme 

court has explained, “[o]nly the State and the defendant are actual 

1. In a related vein, Hembree argues that “[n]ot only has UOVC 

appealed from the wrong order, but it is now too late to appeal 

the correct one.” However, UOVC’s appeal was timely given that 

it did not appeal from the wrong order. See Utah Code § 77-38b205(5) (establishing timelines for entering an order for restitution).
Office for Victims of Crime v. Hembree

20220466-CA 5 2023 UT App 112

parties to a criminal action.” State v. Lane, 2009 UT 35, ¶ 17, 212 

P.3d 529; see also State v. Brown, 2014 UT 48, ¶ 14, 342 P.3d 239

(“[T]he traditional parties to a criminal proceeding are two—the 

prosecution and the defendant.”).

¶10 Even though UOVC is not a traditional party to the case, it 

was nevertheless entitled to participate in some of the 

proceedings. Utah law contemplates that crime victims “possess 

the status of a limited-purpose party with the right to file a request 

for restitution.” Brown, 2014 UT 48, ¶ 20. As relevant here, section 

77-38b-102(17)(b)(i) of the Utah Code defines “victim” to include 

“the [UOVC] if the [UOVC] makes a payment to, or on behalf of, 

a victim.” Thus, because UOVC made payments to the victim in 

Hembree’s case, it qualifies as a victim.

¶11 As a victim under the law and not a party in this case, 

UOVC was “not entitled to participate at all stages of the 

proceedings or for all purposes.” Brown, 2014 UT 48, ¶ 16. Indeed, 

UOVC could not appeal the sentencing order, see Lane, 2009 UT 

35, ¶¶ 16–17, nor could it negotiate the terms of the plea 

agreement, see State v. Hamilton, 2018 UT App 202, ¶ 23, 437 P.3d 

530 (“Plea agreements are negotiated between the defendant and 

the State . . . .”). It could, however, “file and pursue a claim for 

restitution,” including appealing “any ‘adverse rulings on . . . a 

motion or request brought by a victim of a crime or representative 

of a victim of a crime.’” Brown, 2014 UT 48, ¶ 19 (quoting Utah 

Code § 77-38-11(2)(b) (quotation simplified)).2 Accordingly, 

2. Hembree appears to argue that the district court’s minute entry 

from the sentencing hearing—which states that “[r]estitution is 

not being sought in this matter as per the plea agreement”—

constitutes an adverse ruling on a request for restitution that is 

appealable under Utah law. See Utah Code § 77-38-11(2)(b); accord 

State v. Brown, 2014 UT 48, ¶ 19, 342 P.3d 239. But we construe this 

language in the judgment as nothing more than an aside because 

(continued...)
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20220466-CA 6 2023 UT App 112

UOVC was within its rights to file motions and appeal the denial 

of its direct request for restitution.

II. The District Court Erred in Denying UOVC’s Request for 

Restitution

¶12 The district court denied UOVC’s motion for restitution on 

the grounds that it was untimely, that it went against the plea 

agreement between Prosecutor and Hembree, and that ordering 

restitution after sentencing would possibly violate Hembree’s due 

process rights. We address each in turn.

A. UOVC’s Request Was Timely

¶13 The district court concluded UOVC’s motion for restitution 

was untimely because it was not filed until after sentencing. In 

reaching this conclusion, the court misinterpreted the statutory 

provisions governing restitution.

¶14 Victims (like UOVC) may seek restitution after sentencing. 

Section 77-38b-205(5) of the Utah Code allows a court to order 

restitution until the earlier of (1) the conclusion of the defendant’s 

sentence or (2) in the case of a first-degree felony—as is the case 

here—within seven years of sentencing. UOVC filed its motion for 

restitution on February 7, 2022, only two weeks after Hembree 

was sentenced on January 25, 2022, and well within the timeline 

allowed by law.

¶15 In addition, subsection 77-38b-205(4) clearly acknowledges

that a court is not required to enter an order for restitution at 

sentencing and may do so at a later hearing, see Utah Code § 77-

as discussed infra ¶¶ 19–20, there is no evidence that the parties 

agreed on restitution in the plea agreement, that anyone 

affirmatively requested restitution at the sentencing hearing (or 

that the issue was even discussed), or that restitution was 

affirmatively waived.
Office for Victims of Crime v. Hembree

20220466-CA 7 2023 UT App 112

38b-205(4) (“If a court does not enter an order for restitution at 

sentencing, the court shall schedule a hearing to enter an order for 

restitution . . . .”), and subsection 77-38b-205(6) provides for what 

action should be taken when the court does not enter such an 

order, see id. § 77-38b-205(6)(a) (“If a court does not order 

restitution at sentencing . . . , the prosecuting attorney or the 

victim may file a motion for restitution within the time periods 

described in Subsection (5).”). This statutory scheme clearly 

demonstrates the legislature’s understanding and desire that 

restitution can be determined and declared either at sentencing or 

within the statutorily specified period after sentencing. Because 

UOVC is a victim, it was within its rights to file a motion for 

restitution after sentencing because the district court did not order 

restitution at sentencing or schedule a restitution hearing. And 

because UOVC filed its motion within the timeline required, the 

request was valid and should not have been dismissed by the 

district court as untimely.

B. UOVC Is Not Bound by Prosecutor’s Actions

¶16 The district court also denied UOVC’s motion for 

restitution based on its conclusion that UOVC is an “entity of the 

‘State’ of Utah” and was therefore “bound” by Prosecutor’s 

actions in negotiating the terms of the plea agreement, which did 

not affirmatively address restitution. This conclusion was 

erroneous.

¶17 First, though both are agents of the State of Utah, 

Prosecutor and UOVC are separate entities. As previously 

discussed, UOVC is a “victim” in this case. It is well settled that a 

prosecutor does not represent victims in criminal proceedings. 

While prosecutors are given some responsibilities relating to 

victims, they do not represent victims directly. See generally Utah 

Code § 77-38b-202 (outlining the responsibilities of a prosecuting 

attorney regarding the collection of restitution information on 

behalf of a victim). This separation is also evidenced by the fact 
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20220466-CA 8 2023 UT App 112

that a court is prohibited from entering a restitution order without 

holding a hearing unless, among other requirements, the 

prosecutor certifies to the court that he or she “has consulted with 

all victims, including [UOVC].” Id. § 77-38b-205(4)(b) (emphasis 

added). Thus, while the law contemplates that victims and 

prosecuting attorneys must work together in some respects, the 

two entities are still not one and the same.

¶18 Second, UOVC was not “bound” by Prosecutor’s actions

here.3 Section 77-38b-205(6)(a) of the Utah Code states that “[i]f a 

court does not order restitution at sentencing . . . , the prosecuting 

attorney or the victim may file a motion for restitution” within the 

time period allowed by statute. (Emphasis added.) This 

subsection makes clear that victims may submit a request for 

restitution separately from a prosecutor. The ability to seek 

restitution independently evidences that a victim is not limited by 

a prosecutor’s actions—or, as is the case here, inactions. In short, 

because UOVC is a victim, it did not need to work through 

3. There are some circumstances where a prosecutor can bind 

UOVC (or any other victim) concerning restitution: “If a court 

does not enter an order for restitution at sentencing, the court 

shall schedule a hearing to enter an order for restitution, unless: 

the prosecuting attorney certifies to the court, on the record, that: 

(i) the prosecuting attorney has consulted with all victims, 

including [UOVC]; and (ii) all victims, including [UOVC], are not 

seeking restitution.” Utah Code § 77-38b-205(4)(b). Thus, if 

Prosecutor had certified to the court that he had consulted with 

all victims, including UOVC, and thereafter affirmatively 

represented to the court that no restitution was being sought, 

UOVC might be bound by Prosecutor’s actions. However, even if 

Prosecutor had consulted with UOVC and none of the victims 

were seeking restitution (which is clearly not the case), Prosecutor 

never made such a certification to the court, and the failure to 

address restitution is not a circumstance in which the actions of 

Prosecutor can bind UOVC.
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20220466-CA 9 2023 UT App 112

Prosecutor to file a valid motion for restitution, even after 

sentencing.

¶19 Third, UOVC is not “bound” by the terms of the plea 

agreement. As an initial matter, the district court’s conclusion that 

it had “entered a judgment which did not include restitution” is 

not supported by the record. UOVC asserts, and Hembree does 

not dispute, that the plea agreement did not discuss restitution 

amounts or affirmatively state that restitution was not being 

sought. Indeed, there was no indication during the change of plea 

hearing or the sentencing hearing that restitution was not being 

sought, and Hembree has not pointed to anywhere in the record 

where Prosecutor discussed restitution with the court. And while 

the court’s minutes from the sentencing hearing do mention that 

“[r]estitution is not being sought . . . as per the plea agreement,” 

there is no evidence that the parties agreed on restitution in the 

plea agreement or that restitution was affirmatively waived.

Thus, the court’s conclusion that the judgment “did not include 

restitution” was in error. The plea agreement merely failed to 

finalize restitution; it did not forever preclude it from being 

sought.4

4. In response, Hembree posits that UOVC should be estopped 

from seeking restitution because Prosecutor’s silence led 

Hembree to believe that restitution would not be required of him 

and he relied on this assumption in his decision to plead guilty. 

This argument misses the mark. Equitable estoppel has three 

elements. See R.O.A. Gen. Inc. v. Salt Lake City Corp., 2022 UT App 

141, ¶ 28, 525 P.3d 100. To prove the first element, Hembree must 

show that Prosecutor made “a statement, admission, act, or failure 

to act . . . inconsistent with a claim later asserted.” Id. (quotation 

simplified). Hembree cannot prove this element because, under 

the statutory scheme at issue, neither Prosecutor nor UOVC had 

any duty to request restitution before sentencing; rather, they were 

(continued...)
Office for Victims of Crime v. Hembree

20220466-CA 10 2023 UT App 112

¶20 But even assuming, for purpose of argument, that 

restitution had been specifically determined as part of the plea 

agreement, neither the district court nor UOVC would be bound 

by the terms of the agreement. Here, the only parties that were 

bound to the terms of the plea agreement were the parties to the 

agreement—the State and Hembree. See Utah Code § 77-38b102(12) (defining plea agreement as “an agreement entered 

between the prosecuting attorney and the defendant”). Barring 

certain exceptions not at issue here, see supra note 2, the law does 

not allow victims (including UOVC) to be bound by a plea 

agreement to which they are not a party, see State v. Hamilton, 2018 

UT App 202, ¶ 23, 437 P.3d 530 (stating that “plea agreements are 

like contracts” and that only the defendant and the State are 

parties to a plea agreement (quotation simplified)). And this same 

principle applies to the district court. As a non-party to the plea 

agreement, the court is not required to accept the terms of the 

agreement and may instead exercise discretion in determining 

the amount of restitution based on the evidence presented. See 

State v. Stringham, 2001 UT App 13, ¶ 14, 17 P.3d 1153 (“Even 

where the [State] and the defendant reach a plea agreement, the 

court is not required to accept it.” (quotation simplified)); State v. 

Rodrigues, 2009 UT 62, ¶ 26, 218 P.3d 610 (explaining that “a 

district court has discretion to adjust the amount of restitution 

agreed to by the parties in a plea agreement” so long as the 

adjustment falls within the bounds prescribed by statute

(quotation simplified)). Because UOVC is a victim and not a party 

to the case, nothing in the plea agreement bound UOVC to a 

position of not seeking restitution.

¶21 In sum, UOVC was not bound by Prosecutor’s actions. 

UOVC and Prosecutor are separate entities, and, under the 

entitled to request restitution at any time before the earlier of 

seven years after sentencing or the termination of Hembree’s 

sentence. See Utah Code §§ 77-38b-202(2)(c), -205(5).
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20220466-CA 11 2023 UT App 112

circumstances here, Prosecutor did not have the authority to bind 

UOVC regarding a request for restitution.

C. Ordering Restitution Would Not Violate Double Jeopardy

¶22 Lastly, the district court concluded that ordering Hembree 

to pay restitution after sentencing would “potentially” violate his 

due process rights. This conclusion was also incorrect.

¶23 Traditionally, the rules of double jeopardy mean that a 

sentencing order is the only appealable order in a criminal case. 

However, this court and the Utah Supreme Court have 

recognized restitution orders as an exception to this rule because 

restitution orders can be entered after sentencing. See State v. 

Mooers, 2017 UT 36, ¶ 15, 424 P.3d 1; Salt Lake City v. Ausbeck, 2011 

UT App 269, ¶ 4 n.2, 274 P.3d 991, cert. denied, 268 P.3d 192 (Utah 

2011). The supreme court has explained that “the Double 

Jeopardy Clause only proscribes resentencing where the 

defendant has developed a legitimate expectation of finality in his 

original sentence.” State v. Rodrigues, 2009 UT 62, ¶ 36, 218 P.3d 

610 (quotation simplified). Holding a restitution hearing and 

ordering restitution would not violate due process because the 

law specifically allows for decisions to be made regarding 

restitution after a sentence has been imposed. See, e.g., Utah Code

§ 77-38b-205(4) (“If a court does not enter an order for restitution 

at sentencing, the court shall schedule a hearing to enter an order 

for restitution . . . .”). The law anticipates that there will be 

scenarios where restitution is decided after sentencing and gives 

a timeline in which such motions may be made. See id. § 77-38b205(5). Therefore, it is unreasonable to conclude that Hembree 

had a “legitimate expectation of finality” to the issue of restitution

at the time of his sentencing, and the Double Jeopardy Clause 

is not implicated. Rodrigues, 2009 UT 62, ¶ 36 (quotation 

simplified).
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20220466-CA 12 2023 UT App 112

CONCLUSION

¶24 The district court erred in denying UOVC’s motion for 

restitution. The court misinterpreted the relevant statutory 

provisions when it concluded that UOVC could not seek 

restitution after sentencing. UOVC’s motion was timely, UOVC 

was not bound by Prosecutor’s actions, and ordering restitution 

after sentencing would not violate Hembree’s due process rights. 

We therefore vacate the court’s order and remand the matter for 

additional proceedings.