>Larryo wrote:

>> As I understood it, the court held that we should have had an opportunity to
>> contest the outside attorney fees claim, and the case was remanded to the
>> trial court for a rehearing on that issue.
>
>> The C of A seems to have ignored the larger issue about the restitution
>> order in toto, the effect of which is probably to affirm what was done in
>> the trial court. Whether we can revisit that issue at this juncture,
>> without an appeal to the Supreme Court, is problematic.

Steve wrote:

>The decision sez,
>
>"Restitution order reversed and remanded for reconsideration; otherwise
>affirmed."
>
>To me this means that the whole amount of the restitution was thrown back to
>the trial court; i.e. even though the restitution amount was justified by
>itemizing costs of different kinds, there is no separate "order" for Randal to
>pay outside attorneys' fees.
>
>It would be odd if this principle of "necessity" cited by the appeals court
>only applied to attorneys' fees. The point of restitution is to compensate a
>victim for actual costs. Without a necessity test, such as a chance for the
>defense to counter, the victim can throw in whatever they can get the court to
>approve.
>
The problem is that the entire section on that assignment of error must be
read, not just the mandate. The court said that we had raised several
questions about the restitution order but that only one required discussion.
That can easily be read to mean that the rest of the questions we raised are
without merit, and I can assure you with some certainty that Bonebrake will
read it exactly that way.

There is a latin phrase in the law for that: The C of A is said to have
affirmed what the trial court did "sub silentio," which translates as "under
silence" or "without any notice having been taken."

Unless we persuade the Supreme Court to review the decision, Bonebrake will
simply address that portion of the restitution order regarding outside
attorney fees and reaffirm the balance of the restitution decision.

Parenthetically, this decision becomes more and more apparently outrageous
the more often that I read it. Look at the use of the definition of "take,"
for example. Does the court not presuppose that the password file was
*moved,* as opposed to *copied,* notwithstanding that they KNOW that it was
only copied?

And does this whole discussion not ignore the element, which the state
should have had to prove BRD, of the intent to deprive the owner thereof?

I mean, was there any evidence that he appropriated the password file to
himself or a third person? No. He copied it from one Intel computer to
another *and then went off to teach a class.*

I am just appalled!!

LarryO