Whether you watched an episode of Heist on Netflix or you’ve received a target of investigation letter, you’re likely reading this to learn the basics of restitution. And, when it comes to defense strategies, are wondering can it have an impact on your case? Attorney Ben Stechschulte reviews how restitution works in the justice system.
The goal of restitution is to restore victims to where they were financially before the alleged crime occurred. Paying back victims can be used to help you mitigate your overall risk should you go to trial. Restitution laws allow (and may even require) judges to order defendants to pay back victims for financial losses as a result of the crimes.
Better understand victim restitution: Who qualifies to receive it? What losses does restitution cover? How is it decided and enforced? And can I use it to help my defense? Here, we’ll answer in general though you should speak to an attorney about the specifics of your unique case.
Restitution: Paying Back Victims
Restitution aims to make crime victims as ‘whole again’ as possible. Restitution is not an alternative to jail, fines, and/or probation. However, in some cases, this debt can be used in your favor at sentencing. Often, the judge will view restitution as part of the defendant’s rehabilitation.
When paying restitution, defendants show that they are ready to face the consequences of the crimes committed. Another plus in the eyes of the court is restitution saves on judicial resources as victims may not file a separate civil lawsuit to recover monetary damages.
Florida Statutes Section 775.089 | Restitution.—
(1)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
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, …
An order of restitution entered as part of a plea agreement is as definitive and binding as any other order of restitution, and a statement to such effect must be made part of the plea agreement. 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.
Who Is Eligible for Restitution?
Restitution money goes to direct/indirect crime victims, third parties (like restitution fines to victim compensation funds), and government agencies in the case of no direct victims present. Typically, direct and indirect victims are the first to collect restitution payments.
Possible Defense Strategy
Your defense attorney may have you pre-pay restitution to leverage downward departure at sentencing. The idea here is that the need for the money to pay back alleged victims is more than the need for jail time.
What is Downward Departure?
In Florida, a downward departure happens whenever the Judge goes below or ‘departs’ from the lowest permissible prison sentence.
If a person would generally serve 36 months in prison based on the sentencing guidelines, but the judge sentences them to 12 that would be a downward departure. The caveat is that the court must find valid grounds to substantiate a downward departure.
Restitutions Role in Sentencing
You may have to have a restitution hearing, but these are not required in all cases. Defendants often agree to an amount of restitution as part of a plea bargain or at sentencing by the judge. In most serious misdemeanor and felony cases, a presentence report will include a preliminary assessment of what restitution, if any, is appropriate for the case. This is what we can leverage to mitigate some risk at trial.
Ultimately, this decision is up to the judge. To decide the amount to award victims, the prosecution will submit documentation to the court. The judge will then consider your ability to pay based on your current financial status and future prospects.
Restitution orders remain in effect until paid in full, and cannot be discharged by declaring bankruptcy.
Of course, a court order for restitution doesn’t guarantee that a defendant will pay it. Especially when the court considers your future potential as well to get the most for victims. Again, if we can offer pre-payments to aid in plea negotiations or sentencing, that it can be a way to collect restitution for as many victims as possible.
If you’re on probation or are paroled, then you may face further criminal consequences for willfully avoiding paying restitution. In these types of cases, it is also common for victims to take civil action in addition to criminal court.
White Collar Crimes Defense
If you are facing criminal charges and have questions about how restitution may impact your case, speak with a criminal defense lawyer. An experienced attorney like those at Stechschulte Nell can explain any relevant restitution laws to your case. We can also represent you at any restitution hearings or criminal trials.
Contact us today to speak with our Tampa, FL criminal defense law firm: 813-280-1244.