Restitution to Victims of Unconvicted Conduct

Can a defendant be ordered to pay restitution based on offenses that did not result in a conviction? Of course a defendant should not be ordered to pay restitution for a charge on which he or she was acquitted. State v. Bass, 53 N.C. App. 40 (1981) (restitution order for alleged food stamp overpayments was invalid when the defendant was found not guilty of food stamp fraud). But what about the defendant who breaks into 10 different houses but is only charged and convicted—perhaps pursuant to a plea agreement—of three counts? Can he or she be ordered to make restitution for items stolen from the other seven houses? Under G.S. 15A-1340.34(a),“[w]hen sentencing a defendant convicted of a criminal offense, the court shall determine whether the defendant shall be ordered to make restitution to any victim of the offense in question.” That provision appears to limit restitution to crimes of conviction, and our courts have generally read it that way. In State v. Wilburn, 57 N.C. App. 40 (1982), for example, a defendant was convicted of attempting to obtain property by false pretenses based on a scheme in which he would take money from grocery store owners, promising to deliver below-cost cigarettes that he never actually intended to deliver. At his trial for taking money from a grocer named Johnny Andrews, the state called another store owner, Donald Thomas, who testified that the defendant had done the same thing to him the previous year. As part of the defendant’s sentence, the trial [...]