Florida Criminal Restitution Hearing Lawyers
Restitution hearings are a vitally important juncture in the criminal justice system. In Florida, restitution hearings are often heard at the end of a case and after the person has either pleaded guilty or been found guilty after trial. Most commonly, restitution will be ordered as a term of probation. Therefore, a probationer who fails to pay restitution could be found in violation of probation and ordered to return to jail as a probation violator. As a result, contesting restitution hearings is viewed as a critical component of the defense strategy. Otherwise, the judge could order the offender to pay restitution in an amount that is grossly unjust because the person either has to go broke trying to pay the amount owed toward restitution or go to jail.
The state cannot spring a restitution requirement on an offender at any time. The prosecution must move at the time of sentencing to impose restitution as part of the offender’s punishment. However, if the prosecution learns that the victim has lost money either directly or indirectly related to the criminal act for which the person was convicted, the state attorney has 60 days from the date the court renders the sentence, according to Section 3.800(c) of the Florida Code of Criminal Procedure, to amend or modify the offender’s sentence by adding restitution. The prosecution could move to impose a restitution amount after 60 days from the date the judge handed down the offender’s sentence if the prosecution asked for a restitution hearing during the 60-day window. It is important to note that §3.800(c) permits the judge to impose restitution sua sponte, meaning its initiative, without a motion filed by either party.
Each person charged with a victim-related crime could be ordered to pay restitution as part of the sanction for committing the crime. Bearing in mind that the judge is powerless to order restitution after an acquittal in a criminal case (although the victim could file a claim in civil court seeking damages which include restitution), the judge will order restitution in criminal cases such as theft, receipt of stolen goods, shoplifting, embezzlement, fraud, property damage, injury cases, and other criminal acts which caused financial or other injuries to a victim, including death.
Under Florida Statutes §775.089, the sentencing judge may order restitution to be paid for damages or losses either directly related or indirectly related to the criminal conduct or criminal episode. The general rule of restitution in Florida centers around the connection between the restitution sought and the offense. The amount claimed in restitution must have a causal relationship with the offense alleged.
Restitution is not designed to be a financial windfall for the victim in the case. Instead, restitution is supposed to put the victim in the same financial place where they were when the crime was committed. Moreover, if the offense caused a physical injury, the offender must pay the victim for necessary medical care, which includes psychiatric services, reimburse the victim for physical therapy, rehabilitation, or occupational therapy, lost income, and funeral expenses, if the criminal act leads to the death of another. When the restitution order involves a crime that did not cause any personal injuries, the judge could order the offender to compensate the victim for lost income.
In most criminal prosecutions, the amount of restitution is an agreed-upon figure that is easy to figure out. On many occasions, a restitution figure is a useful bargaining tool, and the promise of making the victim whole again could induce the prosecution to agree to a reduced sanction so that the offender will pay the victim back for his or her losses while remaining out of jail or prison. It must be noted that the amount owed in restitution is limited to the amount recited in the information or the recitation of facts by the prosecution during a plea hearing if the payment of restitution is an element of a negotiated disposition.
The prosecution possesses the burden to prove the restitution figure by a fair preponderance of the evidence. Failing that, the judge must deny the state’s motion for restitution; however, if the state attorney meets the burden of proving that restitution is owed, the burden shifts to the defendant to show that the amount of restitution owed exceeds what he or she could reasonably pay. Specifically, the judge must examine the offender’s current and future needs, along with the person’s earning capacity, to reach a just restitution amount. The judge must also consider the offender’s family’s financial needs and deliberating upon a restitution figure.
If the value of the property or goods for which restitution is sought cannot be established with a specific dollar amount, then the victim’s opinion about the value of the property damaged or stolen in the incident is not proper evidence. Instead, the prosecution should hire an expert and ask the individual about the fair market value of the goods. Hearsay or speculation is not enough to sustain the prosecution’s burden of proof.
Establishing the fair market value of an item in a restitution hearing could be accomplished by offering evidence about the original cost of the property, how the items were used, and the condition or quality of the items in question, coupled with the depreciation value of the goods.
Florida Statutes §775.089 sets a timeframe for payment of restitution. The offender has five years from the date he or she is released from jail or prison to pay if he or she was sent to jail without probation. Alternatively, the restitution must be pay before the end date of the probationary term. Otherwise, the restitution amount must be immediately paid to the victim.
If the individual cannot pay restitution, the victim has civil remedies at their disposal to collect the money owed. The judge could order a civil judgment to enter on the victim’s behalf and deduct the restitution amount from a person’s paycheck. The person paying restitution is entitled to formal notice concerning how much will be deducted from the person’s paycheck, as well as the individual’s rights to contest the amount garnished from his or her wages.
Musca Law will Fight for Your Rights in a Florida Restitution Hearing
Lawyers with tremendous experience helping clients know that restitution amounts are often hotly contested. However, unless a Florida defense lawyer has extensive experience contesting restitution orders, the offender could be saddled with an unjust restitution order that could land that person back in jail. Call Musca Law today at (888) 484-5057 and ask how our seasoned Florida restitution defense lawyers could help you achieve justice.