(Code 1933, § 27-3003, enacted by Ga. L. 1980, p. 1382, § 1; Ga. L. 2005, p. 88, § 5/HB 172; Ga. L. 2010, p. 214, § 5/HB 567.)
Editor's notes.- Ga. L. 2005, p. 88, § 1/HB 172, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Crime Victims Restitution Act of 2005.'"
JUDICIAL DECISIONS
Condition of probation.
- Court-ordered restitution may be imposed as a reasonable condition of probation. Morrison v. State, 181 Ga. App. 440, 352 S.E.2d 622 (1987).
O.C.G.A. § 17-14-3 encompasses a trial court's imposition of restitution as a condition of an offender's probated sentence. Murphy v. State, 182 Ga. App. 791, 357 S.E.2d 147 (1987).
Trial court did not abuse the court's discretion in allowing the defendant to pay the full amount of restitution over the course of the defendant's entire probated sentence because allowing the defendant to pay the significant amount of restitution over the course of the probation was a commonsense approach in view of the admittedly limited resources of the defendant. Elsasser v. State, 313 Ga. App. 661, 722 S.E.2d 327 (2011), cert. denied, No. S12C0949, 2012 Ga. LEXIS 555 (Ga. 2012).
Amount of restitution.
- In a burglary case where a sawmill was stripped of copper wiring, there was a preponderance of evidence to support a restitution order when the defendant parked in the same location where burglars parked the previous day, went to a main power room where tools needed for pulling wire and not owned by the sawmill had been left, and had similar tools in the defendant's pickup truck; the amount of a restitution order was not supported by the evidence, however, because the correct determination of the amount of restitution was the fair market value of the property rather than the replacement cost, and witnesses for the state testified only as to replacement value. Hawthorne v. State, 285 Ga. App. 196, 648 S.E.2d 387 (2007).
There was no error in the imposition of restitution since there was no dispute about the amount of restitution due, thus eliminating the trial court's obligation to conduct a hearing. Moreover, the defendant never requested a hearing, nor did the defendant move for a continuance or ask to present any evidence with regard to restitution. Townsend v. State, Ga. App. , S.E.2d (Sept. 24, 2020).
Amount of restitution cannot be set by approximation.
- Trial court erred in ordering the defendant juvenile to pay restitution pursuant to O.C.G.A. § 17-14-3 because the amount of restitution was set by approximation, rather than by a proper opinion of the value of the items damaged; O.C.G.A. § 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. In the Interest of R.H., 316 Ga. App. 317, 728 S.E.2d 911 (2012).
Victim not entitled to restitution for time missed to appear at restitution hearing.
- Although the trial court did not err in entering an order requiring the defendant to pay the victim restitution for lost wages based on the work time the victim lost as a direct result of the defendant's criminal conduct towards the victim, which included the 15 days that the victim spent away from work meeting with lawyers, the bank, and law enforcement authorities, as well as the days the victim spent testifying at the criminal proceedings brought against the defendant, the trial court erred in requiring the defendant to compensate the victim for the day the victim took away from work to appear at the restitution hearing. Jackson v. State, 334 Ga. App. 340, 779 S.E.2d 402 (2015).
Necessity of complying with procedural requirements.
- That portion of the defendant's sentence which imposed restitution as a condition of probation was reversed and remanded to the trial court with direction that a hearing on the issue of restitution be held at which O.C.G.A. § 17-14-9, regarding the amount, and the factors in O.C.G.A. § 17-14-10 were to be considered, and the trial court was further directed that the written finding required by O.C.G.A. § 17-14-8 be made. Murphy v. State, 182 Ga. App. 791, 357 S.E.2d 147 (1987).
Trial court's order on remand to include the required factual findings supporting the court's restitution judgment, after considering the defendant's financial condition and probable future earning capacity was upheld on appeal, as the order: (1) did not include any amount arising out of the counts which the defendant was acquitted; (2) contained a finding that the award could exceed the total amount of money the defendant took wrongfully because the court was allowed to award all damages which a victim could recover against an offender in a civil action, pursuant to O.C.G.A. § 17-14-2; (3) considered the defendant's financial resources, assets, income, and financial obligations as required under O.C.G.A. § 17-4-10; and (4) considered that the defendant's criminal actions caused the victim's the loss that the trial court awarded as restitution. McMahon v. State, 284 Ga. App. 192, 643 S.E.2d 236 (2007).
Finding of defendant's ability to pay.
- Following the defendant's guilty plea to O.C.G.A. § 16-14-4(a) (RICO), an order of $725,000 restitution pursuant to O.C.G.A. § 17-14-3(a) was supported by evidence that the defendant had the capacity for gainful employment, notwithstanding the defendant's claim that the defendant was disabled; that the defendant had possessed hundreds of thousands of dollars of the victims' money; and that the defendant had a venture in which the defendant claimed $4.8 million. Nelson v. State, 329 Ga. App. 300, 764 S.E.2d 883 (2014).
Avoiding restitution by declining relief.
- Statutory scheme does not contain any provision for an unconditional order to make restitution. Thus, the offender or inmate may avoid an order to make restitution by declining the relief upon which the restitution order is conditioned. Conklin v. Zant, 202 Ga. App. 214, 413 S.E.2d 536 (1991).
Showing of wilfulness or inadequacy of alternative punishments required.
- If payment of a fine or restitution is made a condition precedent to probation, a defendant's probation may not be revoked or withheld because of the defendant's failure to pay the fine or restitution without a showing of wilfulness on the defendant's part or inadequacy of alternative punishments. Day v. State, 188 Ga. App. 648, 374 S.E.2d 87 (1988), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).
Sentence requiring defendant to pay restitution while incarcerated held illegal.
- Because that part of a sentence requiring the defendant to pay restitution while incarcerated and pay specific and substantial amounts of restitution both before the commencement of the prison sentence and while on probation was illegal, that portion was vacated, and the defendant's acquiescence to the sentence, either through plea negotiations or a failure to object to the sentence, did not remove the illegality. Sumner v. State, 284 Ga. App. 308, 643 S.E.2d 831 (2007).
Multiple causation.
- There can be more than one proximate cause of injury for a victim of criminal behavior and molestation by a prior family member did not as a matter of law preclude incurring costs against an individual who molested the victim in the victim's professional capacity. Dorsey v. State, 206 Ga. App. 709, 426 S.E.2d 224 (1992).
Tort limitations period held inapplicable.
- Restitution in a sexual abuse case was not barred by the two-year statute of limitation applicable to tort actions since there is nothing in the statutory or case law on restitution to suggest that restitution cannot be awarded after the statute of limitation for an analogous civil action has run. Additionally, even though the amount of damages suffered by the victim, as one consideration setting the upper limit for a restitution amount, is ascertained by looking to the amount of damages available in an analogous civil action, restitution is not synonymous with a civil action and does not preclude a separate civil action. Dorsey v. State, 206 Ga. App. 709, 426 S.E.2d 224 (1992).
Lien not authorized.
- Trial court erred in allowing that any restitution sums not paid in full during the term of the defendant's probation be subject to a lien because a court may order restitution only as a condition of any relief, such as probation, and when a defendant's probation is completed the court does not have the authority to continue restitution payments or impose a lien. Jones v. State, 246 Ga. App. 857, 542 S.E.2d 584 (2000).
Cited in Evans v. State, 204 Ga. App. 458, 419 S.E.2d 532 (1992); Hartsell v. State, 288 Ga. App. 552, 654 S.E.2d 662 (2007).
OPINIONS OF THE ATTORNEY GENERAL
Authority to collect payments.
- Collection and disbursement of payments of fines and restitution as may be established as conditions upon the grant of parole may be undertaken by probation supervisors employed by the Department of Offender Rehabilitation (now Department of Corrections) so long as such payments are specifically required by court order as the result of a criminal proceeding. 1984 Op. Att'y Gen. No. 84-50.
Payment of fines and restitution during parole.- State Board of Pardons and Paroles may, as a condition of parole, order parolees to commence court imposed payments such as fines and restitution while on parole. 1984 Op. Att'y Gen. No. 84-50.
Restitution required for unemployment fraud.
- Employment Security Act, O.C.G.A. § 34-8-1 et seq., does not authorize the imposition of a criminal sentence for unemployment fraud that permits community service in lieu of restitution of overpaid benefits to the Department of Labor. 1993 Op. Att'y Gen. No. 93-15.
RESEARCH REFERENCES
ALR.
- Mandatory victims restitution act - constitutional issues, 20 A.L.R. Fed. 2d 239.