What is Restitution?
In Florida, restitution is a monetary payment made by a convicted offender to the victim(s) of his or her offense. Under Florida Statutes Section 775.089, a court may require an offender to make restitution to his or her victim or victims due to (1) damage or loss caused directly or indirectly by the defendant’s offense; and (2) damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution. Florida courts order restitution payments as a part of one’s sentence including as a condition of probation pursuant to Florida Statutes Section 948.03. If a probationer fails to make restitution payments, when restitution is ordered as a condition of probation, it may be considered grounds for the revocation of probation. In determining whether to revoke probation, the court shall consider the convicted offender’s earning capability, financial resources, employment status, the willfulness of his or her failure to pay, and any other special circumstances that may have a bearing on the defendant’s ability to pay.
Restitution can also be ordered as a part of a convicted offender’s prison sentence, or as part of a plea agreement, which is definitive and binding, and a statement of such effect must be included therein. A plea agreement may contain provisions that order restitution relating to criminal offenses committed by the defendant to which the defendant did not specifically enter a plea. Restitution can also be ordered as a sole remedy for a crime, depending upon the discretion of the presiding judge.
It is important to note that restitution can be monetary or non-monetary, and depends upon the type of offense committed. Keep in mind that payment of restitution does not negate the requirement that the court order payment to the Crimes Compensation Trust Fund pursuant to Florida Statutes Section 960, unless this requirement is waived by the court.
A judge can order restitution in several instances. For example, if an offender sprays graffiti on a person’s business, he or she may be ordered to compensate the victim for the damage, for instance. Moreover, a victim who sustains a broken arm due to a mugging may be required to pay the victim for his or her medical expenses. Restitution is meant to make the victim or victim(s) of criminal offenses “whole” once again and to restore any monetary finances lost as a result of a crime.
Which Criminal Offenses Typically Warrant the Payment of Restitution?
In Florida, fraud and theft convictions routinely warrant the payment of restitution. Other crimes that may involve the payment of restitution include driving under the influence, assault, battery, sexual assaults, hate crimes, crimes committed against the elderly, child abuse, identity fraud, and domestic violence. Anyone in Florida who is charged with these offenses must seek out the services of a qualified Florida Criminal Defense Attorney as soon as possible.
Restitution Hearings in Florida
Pursuant to Rule 3.800(c) of the Florida Rules of Criminal Procedure, a restitution order must be imposed during the sentencing phase of a criminal proceeding or within 60 days thereafter. L’Heureux v. State, 968 So.2d 628, 629 (2d DCA 2007), citing State v. Sanderson, 625 So.2d 471, 473 (Fla. 1993). In certain instances, the presiding judge may hold a restitution hearing after the aforementioned 60-day timeframe if he or he orders restitution as part of a probation order but indicates that the restitution amount be determined in a restitution hearing. In this case, it is essential for the defendant to immediately challenge any restitution amount as soon as he or she becomes aware of the pursuit of a restitution order. If a restitution order is contested, then the judge may schedule a restitution hearing. During the hearing, the prosecutor must establish that the restitution amount being pursued is reasonable given the specific set of circumstances.
In the case of Soriano v. State, 968 So.2d 112 (4th DCA 2007), the court noted that, under Florida Statutes Section 775.089(7), a given restitution amount be established by substantial competent evidence where, if it is contested, the prosecution must establish the amount of loss(es) by a preponderance of the evidence. Keep in mind that the statute further provides that the burden of demonstrating the present financial resources and the absence of potential future financial resources of the defendant and the financial needs of the defendant and his or her dependents is on the defendant. Moreover, the burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.
To clarify, evidence proffered with regarding to determining an appropriate restitution amount must be based upon more than mere speciation, as speculation or the victim’s opinion based upon his or her losses is not sufficient to sustain a restitution order. For example, an owner of property that was stolen by the defendant must identify what exactly was taken in order to pursue a proper restitution amount.
Evidence Required to Demonstrate Fair Market Value of Stolen Property
In order to obtain a proper restitution amount in a case involving the theft of property, the fair market value of the same must be determined through the submission of evidence to the court or via direct testimony. When ascertaining an appropriate restitution amount during a hearing, the price that the victim paid to replace the stolen item cannot be used. As noted above, the proper determination is by examining the fair market value of the item during a restitution hearing, fair market value is calculated by a consideration of the following:
- The original cost of the item;
- The manner in which the item was used;
- The condition of the item when the loss happened; and
- The likely depreciation percentage.
Otherwise stated, if a certain item is used, then the proper value of same is its used value, not the amount it costs to go to a store and buy a similar item that is new. Keep in mind that although fair market value is not the only standard a court can use, in most instances where the fair market value would appropriately compensate a victim, then the Negron factors should be applied, as provided above.
The Standard for Determining a Proper Restitution Amount
Before a court can award an appropriate restitution amount, “it, [under Florida Statutes Section 775.089(1),] must find that the loss or damage is causally connected to the offense and bears a significant relationship to it
The Reasons Why Restitution Payments are Ordered
It is important to note that restitution does not constitute a fine, as a fine is a predetermined amount as provided by law and is paid directly to the State of Florida. In a legal sense, restitution is not compensation either, as it qualifies as a criminal punishment. Restitution, as noted above, is paid to a victim or victims for damages sustained, which means that the amount of restitution varies per case.
In Florida, restitution, as noted above, is typically ordered for the following reasons:
- Loss or damage caused directly or indirectly by the offense;
- Loss or damage pertaining to an offense;
- When a criminal offense results in bodily injury, the defendant may be required to compensate the victim or victims for:
- Needed medical and professional services;
- Needed rehabilitation, occupational therapy, and physical therapy;
- Income loses on the part of the victim sustained as a result of the criminal offense; and
- The costs of funeral and related services if the criminal offense resulted in the death of a victim or victims.
Except for victims of domestic violence, whose criminal proceedings are handled separately and differently, criminal offense victims in the state of Florida are asked to fill out a Victim Impact Statement, which specifies the expenses incurred due to the commission of the underlying criminal offense.
As noted previously, victims of criminal offenses may be made “whole” for property that is damaged, stolen property, lost wages, and medical expenses. However, pain and suffering is not included in a restitution award, as this can be pursued in a personal injury lawsuit against the criminal offender.
What Judges Consider When Ordering Restitution
In Florida, restitution is not a substitute for such remedies as a personal injury case filed in a civil court, as it is a monopoly of the state’s criminal courts. Keep in mind that restitution can also be ordered to “indirect” victims of criminal offenses such as the surviving family members of a murder victim. Moreover, if a victim received reimbursement by an insurer, a state agency, or a victim services group, the payment of restitution to such agency or company may be ordered by the court.
In deciding a proper restitution amount, a judge in Florida considers the following:
- The losses sustained by the victim;
- The gains obtained by the offender;
- The gravity and circumstances of the criminal offense;
- The financial burden on the victim or victims; and
- The capacity of the offender to pay restitution and his or her resources in support thereof.
If an offender does not have the resources to pay restitution to the victim or victims of his or her crime, the court may enter a civil restitution lien against the defendant, which will attach to his or her current and future assets up to the total amount of the lien.
Modifying a Restitution Order and Failing to Pay Restitution
A restitution order can be changed via a motion to modify it. An offender’s probation officer can begin proceedings for the non-payment of restitution, which could result in criminal sanctions, such as imprisonment and other associated penalties. However, when an offender submits a motion with the court to modify restitution, the court examines his or her good faith efforts to pay restitution, if applicable, the effect that the restitution order has on his or her life, and his or her ability to pay. Keep in mind that the presiding judge may reduce the restitution obligation rather than terminate it altogether. As such, anyone who is unable to pay a restitution amount should make a motion to modify it before a probation violation proceeding is commenced.
As noted above, it is important to note that it can be a criminal offense if you are unable to pay restitution, and you can go to jail or prison if you fail to pay restitution or miss a restitution payment. In other words, failing to make restitution payments can amount to a violation of probation. The good news is that there are defenses available to an offender who is deemed in violation of a restitution order.
During a failure to pay restitution proceeding, the offender must testify that he or she cannot afford the payments that are required pursuant to a restitution order. A person in violation of a restitution order will be asked by the judge such questions as (i) do you smoke?; (ii) do you consume alcohol?; have you been on vacation recently?; do you have the most current iPhone version?; what kind of vehicle do you drive?; and, been to any concerts lately? So, answering in the affirmative to any of these questions can prove troublesome, as the presiding judge may decide that probation was violated due to you paying $100 for a ticket to see U2 play live, but you failed to pay $100 towards restitution. Or, if you are a smoker, the judge may determine that the $10 per day that you pay for cigarettes could have gone towards your restitution order rather than to feed your addiction.
Under Florida Statutes Section 948.06(5), in hearings where the probationer or offender in community control fails to pay the cost of supervision or restitution, as directed, is established by the prosecution, if the probationer or offender asserts his or her inability to pay restitution or the cost of supervision, the probationer or offender has the burden of producing clear and convincing evidence that he or she does not have currently have the resources necessary to pay restitution or the cost of supervision despite bona fide efforts legally to acquire the resources to do so. If the probationer or offender cannot pay restitution or the cost of supervision despite sufficient bona fide efforts, the court shall consider alternate measures of punishment other than prison time. Otherwise stated, this statute does not require the prosecution to establish that the probationer or offender was able to make restitution payments. It requires the defendant to prove that he or she is unable to make the required restitution payments.
It is important to note that a violation of probation in failing to pay restitution must be “willful.” It is not a “willful” violation of probation when an offender fails to pay restitution despite making good faith efforts to do so. What qualifies as a good faith effort to pay varies based upon the facts and circumstances of one’s case.
An additional problem in cases involving restitution is the failure to pay pursuant to a structured payment schedule created by a probation officer. Keep in mind that a probation officer does not have the authority to create a payment schedule, as only a judge can do this. It is also important for offenders to understand that probation cannot be extended due to a failure to pay restitution. If this were the case, then a disabled offender would be on probation for an indefinite period of time.