You have been found guilty of the crime and not only do you now have a criminal record, but you also have to pay the victim restitution. Restitution is the restoration of something lost or stolen. It is the criminal equivalent of making the victim “whole”.
The restitution statue begins at O.C.G.A. § 17-14-1: “It is declared to be the policy of this state that restitution to their victims by those found guilty of crimes or adjudicated as having committed delinquent acts is a primary concern of the criminal justice system and the juvenile justice system.”
How Is Restitution Determined?
OCGA § 17–14–3 allows for court-ordered restitution, as part of a sentence, to the victim of a crime. “The amount of restitution ordered shall not exceed the victim’s damages.” OCGA § 17–14–9. For purposes of restitution, OCGA § 17–14–2(2)defines damages as “all … damages which a victim could recover against an offender in a civil action … based on the same act or acts for which the offender is sentenced[.]” When restitution is ordered for property that the defendant stole or destroyed, the correct determination for the amount of restitution is the fair market value of the property at the time of loss, rather than the original purchase price or replacement cost. Hawthorne v. State, 285 Ga. App. 196, 197(1), 648 S.E.2d 387 (2007). Georgia Courts held that OCGA § 17–14–9 does not permit a trial judge to set the amount of restitution by approximation but requires that the amount be based on proper opinion evidence of fair market value. Lovell v. State, 189 Ga. App. 311, 313(3), 375 S.E.2d 658 (1988).
In short, the restitution must be determined by fair market opinion rather than approximation. Whatever the restitution is determined to be, it shall not exceed the victim’s damages.
What Factors Go Into Restitution?
- In determining the nature and amount of restitution, the ordering authority shall consider:
(1) The financial resources and other assets of the offender or person ordered to pay restitution including whether any of the assets are jointly controlled;
(2) The earnings and other income of the offender or person ordered to pay restitution;
(3) Any financial obligations of the offender or person ordered to pay restitution, including obligations to dependents;
(4) The amount of damages;
(5) The goal of restitution to the victim and the goal of rehabilitation of the offender;
(6) Any restitution previously made;
(7) The period of time during which the restitution order will be in effect; and
(8) Other factors which the ordering authority deems to be appropriate.
(b) If, subsequent to restitution being ordered pursuant to this article, a victim is convicted of a crime for which restitution is ordered, the ordering authority shall consider the previously ordered restitution as part of the financial resources of such victim.
What If I Don’t Pay Restitution?
If you don’t pay your restitution, the Court will have a variety of options under OCGA 17-14-3:
(b) If an offender or other person ordered to pay restitution willfully refuses to comply with a restitution order, the order, in the discretion of the court, may be enforced by attachment for contempt, upon the application of the prosecuting attorney or the victim.
(c) Failure to comply with a restitution order may, in the discretion of the ordering authority, be grounds to revoke or cancel the relief at any time the restitution order is in effect. Where the relief is earned time allowances, the Department of Corrections may suspend the offender from earning earned time allowances for a specified period of time.
Why Bixon Law?
There are many ways to fight a restitution hearing that are not fully detailed in this article. If you have a restitution hearing, you want an attorney who is prepared to fight. Most times, restitution can be reduced or denied just by strategic questions or proving inability to pay. Call Bixon Law today to learn how we can fight restitution for you!