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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45976

STATE OF IDAHO,

Plaintiff-Respondent,

v.

ALLEN LEE MOORE,

Defendant-Appellant.

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Filed: September 27, 2019

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Richard D. Greenwood, District Judge. 

Order of restitution, affirmed. 

Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney 

General, Boise, for respondent. 

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BRAILSFORD, Judge

Allen Lee Moore appeals from the district court’s order of restitution. He asserts the 

district court abused its discretion by entertaining the State’s motion for restitution, which the 

State submitted approximately thirty days after the district court’s deadline for such a motion. 

We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Moore pled guilty to felony aggravated battery and to misdemeanor battery. The district 

court sentenced Moore to a unified term of eight years with two years determinate, but 

suspended Moore’s sentence and placed him on probation. At the sentencing hearing, the State 

requested a restitution order, noted that the restitution amount was $1,650.39 at that time, and 

further requested the court to leave restitution open for ninety days in anticipation of requesting 
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an additional amount. The district court partially granted the State’s request and included in its 

probation order that “the State is directed to notice restitution for hearing if the parties cannot 

stipulate to an amount within 60 days.”

Approximately thirty days after this deadline, the State filed a motion seeking $2,135.63 

in restitution. At the hearing on the motion, the State explained that the filing was late due to a 

clerical error; the restitution department incorrectly calendared the deadline for ninety days 

rather than sixty days; and the State filed the motion on January 23, 2018--the same day the State 

received the final statement for the Crime Victims Compensation Program (CVCP) from the 

Idaho Industrial Commission. Based on these facts, the State requested relief from the sixty-day 

deadline. Moore stipulated that “it looks like the State received a letter dated January 23rd from 

the Industrial Commission, their [CVCP].” Although Moore acknowledged that the State’s late 

filing did not prejudice him and that he did not object to the motion on the merits, he did object 

to the motion as untimely. Relying on State v. Ferguson, 138 Idaho 659, 67 P.3d 1271 (Ct. App. 

2002), Moore argued the additional time was not “necessary.”

The district court rejected Ferguson as controlling and granted the State leave from the 

original deadline. The district court explained that, unlike Ferguson, Moore’s case remained 

ongoing and that the district court’s deadline was neither jurisdictional nor statutory but rather a 

convenient means of ensuring the parties concluded restitution. Further, the district court based 

its ruling on the fact that the CVCP information was unavailable until after the deadline. Finally, 

the district court concluded that its procedural deadline should not “overrule the mandates of the 

[restitution] statute.” Despite the district court granting the State’s request for an enlargement of 

time to file its restitution motion, the district court entered an order awarding without explanation 

only $1,650.39 in restitution--the original amount of restitution at the time of the sentencing 

hearing. Moore timely appeals.

II.

STANDARD OF REVIEW

Idaho Code Section 19-5304(2) authorizes a sentencing court to order a defendant to pay 

restitution for economic loss to the victim of a crime. The decision of whether to order 

restitution, and in what amount, is within the discretion of a trial court, guided by consideration 

of the factors set forth in I.C. § 19-5304(7) and by the policy favoring full compensation to crime 

victims who suffer economic loss. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct.
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App. 2002); State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct. App. 1989). Thus, we 

will not overturn an order of restitution unless an abuse of discretion is shown. Richmond, 137 

Idaho at 37, 43 P.3d at 796. When a trial court’s discretionary decision is reviewed on appeal, 

the appellate court conducts a multi-tiered inquiry to determine whether the lower court: 

(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such 

discretion; (3) acted consistently with any legal standards applicable to the specific choices 

before it; and (4) reached its decision by an exercise of reason. Lunneborg v. My Fun Life, 163 

Idaho 856, 863, 421 P.3d 187, 194 (1994).

III.

ANALYSIS

“Restitution orders shall be entered by the court at the time of sentencing or such later 

date as deemed necessary by the court.” I.C. § 19-5304(6). Section 19-5304(6) makes clear that 

“the court may need to grant the prosecution a reasonable amount of time necessary to gather 

information so as to locate all victims and correctly compute the amount of restitution.” State v. 

Jensen, 149 Idaho 758, 762, 241 P.3d 1, 5 (Ct. App. 2010) (quoting Ferguson, 138 Idaho at 662, 

67 P.3d at 1274).

Moore asserts the district court abused its discretion “by entertaining the State’s tardy 

motion.” He argues the district court did not act consistently with I.C. § 19-5304(6) because the 

additional time the district court granted the State was “not actually ‘necessary.’” Moore reasons 

that the additional time was unnecessary because the district court’s “finding that the victims 

were unable to provide the restitution documentation to the State within the [original] sixty-day 

deadline is not supported by substantial evidence.”

We disagree that the district court abused its discretion. First, contrary to Moore’s 

assertion, the district court did not find the victims were unable to provide the restitution 

documentation within the original deadline. Rather, the district court found that the CVCP 

information from the Industrial Commission “wasn’t available” until after the deadline. Based 

on the context of the district court’s comments, we understand this finding to mean that the State 

did not receive the CVCP information from the Industrial Commission until January 23--a fact to 

which Moore stipulated. Based on this fact, the State demonstrated additional time was 

necessary because the State had not received complete restitution information by the deadline. 

See State v. Keys, 160 Idaho 95, 97-98, 369 P.3d 313, 315-16 (Ct. App. 2016) (“The state may be 
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permitted to take a reasonable amount of time necessary to gather information in an effort to 

correctly compute the amount of restitution, but the state must demonstrate that the additional 

time was necessary.”).

Second, Moore fails to cite any case law or other authority to support his suggestion that

the district court must find the victims were unable to provide restitution information (versus the 

State had not yet received that information) within the court’s original deadline before additional 

time under I.C. § 19-5304(6) is necessary. A party waives an issue on appeal if either authority 

or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). 

Accordingly, Moore waived this issue on appeal.

Finally, the district court retained jurisdiction to modify the terms and conditions of its 

probation order, including the time within which the State could file a restitution motion. See 

State v. Dorsey, 126 Idaho 659, 661, 889 P.2d 93, 95 (Ct. App. 1995) (holding district court 

retained jurisdiction during probationary period to modify probation order regarding restitution). 

In Dorsey, the district court placed Dorsey on probation for five years and ordered the prosecutor 

to submit a restitution claim within thirty days. Id. at 660-61, 889 P.2d at 94-95. More than 

three months later, the prosecutor submitted a letter to Dorsey’s attorney providing the restitution 

amount and requesting a response. Id. at 660, 889 P.2d at 94. Due to oversights, the prosecutor 

did not provide the letter to the district court until approximately twenty-nine months later. Id. 

After a hearing on the matter, the district court ordered Dorsey to pay restitution, and he 

appealed. Id. at 661, 889 P.2d at 995. On appeal, Dorsey argued “the prosecutor’s failure to 

comply with the probation order precluded the district court from further exercising its discretion 

with regard to the question of restitution.” Id. This Court rejected Dorsey’s argument ruling 

that:

Although the [probation] order specified that the prosecutor would establish the 

sums due and submit a claim to defense counsel and the court within thirty days, 

the order did not purport to limit the recovery of restitution nor impose any 

sanction for noncompliance on the part of the prosecutor. Following entry of this 

order, the court retained jurisdiction during the probationary period, with the 

authority to modify the terms and conditions of probation, pursuant to 

I.C. § 20-221.

Id.

As in Dorsey, the district court in this case was clearly within its discretion to modify its 

probation order to allow the State additional time to file its restitution motion. Nothing in the 

district court’s probation order purported to limit the recovery of restitution or to impose any 
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sanction on the State for noncompliance with the order. The State demonstrated additional time 

was necessary, and when the district court modified its order to allow the additional time, 

Moore’s case was not closed, but rather it remained ongoing and Moore remained on probation.

IV.

CONCLUSION

Accordingly, the district court did not abuse its discretion by considering the State’s late

filing and awarding restitution. The order of restitution is affirmed.

Chief Judge GRATTON and Judge LORELLO CONCUR.