How Would You Like to Pay?  Kansas Court of Appeals Holds That a Defendant Cannot Be Ordered to Use a Specific Asset to Pay Restitution

Kansas v. Smith, No. 126,038, 2025 WL 350217 (Kan. Ct. App. Jan. 31, 2025).

Author: Michael Moore, Staff Editor

Issue: Can a criminal defendant be ordered to assign their unrealized inheritance or change the beneficiary on their life insurance policy to their victim as part of their restitution?

Answer: No.

Facts: Kenna Smith pleaded guilty to the mistreatment of an elderly person.  Smith was sentenced, in part, to pay $510,492.86 in restitution.

Smith proposed three ways to satisfy this amount: Smith would (1) pay her victim $750 in monthly installments, (2) assign her victim the $250,000 inheritance she expected to receive from the estate of an ill relative, and (3) make her victim the beneficiary of her $1,000,000 life insurance policy.  The State agreed to Smith’s proposed terms and the district court entered an order to that effect.

Smith then appealed the legality of the latter two terms, which she herself proposed, arguing the restitution order violated K.S.A. § 21-6604(b).

Discussion: K.S.A. § 21-6604(b) allows district courts to impose restitution as part of a criminal sentence, but it limits the means through which restitution may be collected.  A court may order restitution to be paid (1) immediately after sentencing, (2) at a specified future time, or (3) in specified installments.  

The district court ran afoul of K.S.A. § 21-6604(b) by ordering Smith to sign over her expected inheritance and make her victim the beneficiary of her life insurance policy.  First, even though they would satisfy the restitution amount, neither would occur at a specific time in the future as required by K.S.A. § 21-6604(b)(2); Smith’s inheritance would depend upon the untimely death of her ill relative, and Smith’s life insurance policy would not pay out until Smith’s own death.  Second, K.S.A. § 21-6604(b)(1) does not allow a district court to specify which assets the defendant must use for their restitution.  Accordingly, neither of these orders can be reconciled with the statute’s plain language.

The Kansas Court of Appeals vacated the district court’s restitution order as an illegal sentence in violation of K.S.A. § 22-3504(b) and remanded for further proceedings.

Key Authorities: Kan. Stat. Ann. § 21-6604(b) (2010) (allowing restitution as part of a criminal sentence).