The amount of restitution ordered shall not exceed the victim's damages.
(Code 1933, § 27-3009, enacted by Ga. L. 1980, p. 1382, § 1; Ga. L. 2005, p. 88, § 5/HB 172.)
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
Restitution is not synonymous with civil damages. Morrison v. State, 181 Ga. App. 440, 352 S.E.2d 622 (1987).
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 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).
Appellate court vacated the order of restitution and remanded the case to the trial court for clarification as although the trial court ruled in the state's favor, the appellate court was unable to determine whether the trial court found as a matter of fact that the defendant had agreed to pay the full amount of restitution or whether the trial court concluded that the court was authorized to award the full amount even if the defendant had not so agreed, which would constitute error. O'Brien v. State, 353 Ga. App. 425, 838 S.E.2d 96 (2020).
Specific findings of fact and maximum amount allowed.
- Order for restitution failed to make specific findings of fact and amount awarded exceeded victim's damages. Revis v. State, 223 Ga. App. 470, 477 S.E.2d 880 (1996).
Fees paid for special grand jurors, traverse jurors, and bailiffs could not properly be included in the sum which the defendant was ordered to pay the defendant's victim as restitution. Martin v. State, 189 Ga. App. 483, 376 S.E.2d 888, cert. denied, 189 Ga. App. 911, 376 S.E.2d 888 (1988).
Measure of damages.
- In measuring the appropriate damages for restitution, the court must determine what type of civil action could be maintained by the victim and what the proper measure of damages would be in such a civil action. Garrett v. State, 175 Ga. App. 400, 333 S.E.2d 432 (1985), overruled on other grounds, McCart v. State, 289 Ga. App. 830, 658 S.E.2d 465 (2008).
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).
Restitution cannot be determined by approximation.
- Evidence was insufficient to support the trial court's finding of the amount of restitution as to beer damaged or destroyed in a store since the storekeeper testified that the storekeeper could not "really give you the exact amount" of the fair market value of the beer and the amount of restitution was set by approximation rather than by a proper opinion of the value. Lovell v. State, 189 Ga. App. 311, 375 S.E.2d 658 (1988).
Amount of restitution ordered for the restoration of a stripped automobile was not supported by evidence since there was no evidence of reasonable hire, nor any evidence of the car's value either at the time of the car's theft, or after the car was stripped. Lomax v. State, 200 Ga. App. 233, 407 S.E.2d 462 (1991).
Evidence was insufficient as a matter of law to support restitution in the amount of $5,000 for a stolen car since no evidence was adduced concerning the value of the car at the time the car was stolen or after the car was returned in damaged condition. Burke v. State, 201 Ga. App. 50, 410 S.E.2d 164 (1991).
Because theft by receiving is analogous to the civil tort of conversion, the court may award the victim of this crime the value of the property at the date the property was converted plus the rental value of the vehicle from that date until the date of trial. In re C.B., 221 Ga. App. 102, 470 S.E.2d 493 (1996).
The court's order to make restitution based on a portion of the difference between the amount received by the victim from the insurer on a totaled car and the price of the victim's replacement vehicle, plus deductible, did not comply with the law. In re C.B., 221 Ga. App. 102, 470 S.E.2d 493 (1996).
Victim's testimony as to the estimated cost of repairs of the victim's truck and original purchase price of a damaged CD player did not establish the fair market value. Cardwell v. State, 225 Ga. App. 337, 484 S.E.2d 38 (1997).
An order of restitution in the amount of $5,982 based on an unsupported assertion that the defendant collected that amount in food stamps was reversed and remanded for determination of the amount in accordance with the rules of evidence. Britt v. State, 232 Ga. App. 780, 503 S.E.2d 653 (1998).
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).
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).
Restitution order proper.
- Co-defendant did not show that the trial court abused the court's discretion by ordering the defendant jointly and severally liable for restitution in the case because the amount of restitution ordered was within the limits allowed by law as it did not exceed the victim's damages, and in setting that amount, the trial court specifically considered the factors set forth in O.C.G.A. § 17-14-10. Hettrick v. State, 334 Ga. App. 115, 778 S.E.2d 369 (2015).
Replacement cost not allowed.
- Trial court erred in basing the court's determination of the measure of damages for purposes of restitution on the replacement cost of the items stolen rather than fair market value. Fewox v. State, 243 Ga. App. 651, 534 S.E.2d 121 (2000).
Proof of amount.
- Trial court did not base the court's restitution amount for damage to a dresser on hearsay since the court considered, in addition to written repair estimates, the victim's testimony as owner, the victim's opinion as to both the cost of repair and the pre-damage fair market value, and photographs submitted. Barnes v. State, 239 Ga. App. 495, 521 S.E.2d 425 (1999).
Trial court did not err in considering the victim's personal knowledge as to the value of a damaged stove since the evidence demonstrated that the victim had the opportunity to formulate an opinion about the value. Barnes v. State, 239 Ga. App. 495, 521 S.E.2d 425 (1999).
Victim's testimony as to the actual cost paid to have a damaged floor repaired was not hearsay. Barnes v. State, 239 Ga. App. 495, 521 S.E.2d 425 (1999).
Restitution had to be equal or less than the victim's damages; determination of the damages had to be based upon fair market value which had to be determined exactly. Jackson v. State, 250 Ga. App. 617, 552 S.E.2d 546 (2001).
With regard to a restitution judgment entered against a defendant with regard to the defendant's conviction for theft by taking of copper wire, under the preponderance of the evidence standard, the trial court did not abuse the court's discretion in concluding that the fair market value of the stolen wire was $6,470 and in issuing a restitution order in that amount since the defendant failed to establish that the wire was merely scrap and the amount the defendant and the codefendant received from selling the stolen wire was irrelevant for purposes of the restitution order. McClure v. State, 295 Ga. App. 465, 673 S.E.2d 856 (2009).
Trial court erred in ordering the defendant to pay restitution after the defendant pled guilty to theft by receiving stolen property, a vehicle, because the state failed to prove the fair market value of a vehicle when no evidence was presented that the condition of the vehicle was considered in determining the value of the vehicle, which appeared to be based totally on the vehicle identification number; although an insurance company that was seeking to recover money from the defendant was forced to value the vehicle before the vehicle was recovered, that did not prevent the state from introducing evidence, such as testimony from the victim or others with such knowledge, concerning the condition of the vehicle at the time of the theft. Browning v. State, 303 Ga. App. 805, 695 S.E.2d 291 (2010).
Trial court did not err in ordering the defendant to pay the victim restitution after the defendant pled guilty to arson in the first degree because the trial court was authorized to find that the preponderance of the evidence showed that the victim owned the house at the time of the fire, and evidence was presented to show the cost of repairs and its relation to the value of the house prior to the fire, in accordance with the law of damages to real property; the evidence of the background of the victim, a real estate investor who repaired houses personally, provided some evidence to show that the investor had knowledge, experience, or familiarity with the cost of repairs, the value of real estate, and the extent of the damages to the investor's property pursuant to former O.C.G.A. § 24-9-66 (see O.C.G.A. § 24-7-701). Mayfield v. State, 307 Ga. App. 630, 705 S.E.2d 717 (2011).
Trial court did not err in assessing the value of a dog the defendant killed at $3,000 because evidence of the knowledge, experience, and familiarity of a witness with the value of labrador retrievers trained to hunt created a basis for the value stated. Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714 (2012).
Order of restitution was vacated because the state failed to adduce sufficient evidence to support an amount of $500 in damages for the pistol the defendant stole; while the trial court accepted the replacement cost as the fair market value of the gun, the correct determination for the amount of restitution was the fair market value of the property rather than the replacement cost. Austin v. State, 315 Ga. App. 713, 727 S.E.2d 535 (2012).
Order of restitution was vacated because the state failed to adduce sufficient evidence to determine the fair market value of the coin collection the defendant stole; the owner's opinion lacked foundation because there was no showing that the owner had some knowledge, experience, or familiarity with the value of the coins, and absent that foundation, the owner's opinion was nothing more than conjecture, an unsupported conclusion, or a guess. Austin v. State, 315 Ga. App. 713, 727 S.E.2d 535 (2012).
In an action for burglary and theft by taking, the state presented sufficient evidence to support the amount of the restitution award including testimony from the victim and an estimate from a jeweler. Summers v. State, 355 Ga. App. 205, 843 S.E.2d 877 (June 30, 2020).
Amount not excessive.
- Order requiring the defendant to pay $15,000 in restitution did not violate O.C.G.A. § 17-14-9. Since the victim originally owed a nursing facility over $17,000 before the amount was reduced because of Medicaid payments, and the defendant had converted at least $7,200 belonging to the victim, the trial court could have required the defendant to pay about $25,000 in restitution; the fact that some of these damages might be paid by third parties did not absolve the defendant of liability for making restitution. Adams v. State, 291 Ga. App. 681, 662 S.E.2d 782 (2008), overruled on other grounds, Turner v. State, 312 Ga. App. 799, 720 S.E.2d 264 (2011).
Effect of discharge in bankruptcy.
- Offender is not absolved from paying for damages caused by the offender's actions merely because the victim filed bankruptcy. Crozier v. State, 233 Ga. App. 831, 506 S.E.2d 139 (1998).
Evidence was sufficient to authorize judgment of $4,750.00 in restitution for the taking of tools and motor vehicles. Hodges v. State, 201 Ga. App. 729, 411 S.E.2d 775, cert. denied, 201 Ga. App. 903, 411 S.E.2d 775 (1991).
Evidence was sufficient to support the amount of $112,124.50 as restitution to a county for losses suffered as the result of fraudulent conduct of defendant. Anderson v. State, 226 Ga. App. 286, 486 S.E.2d 410 (1997).
Amount of restitution ($63,000) assessed against a defendant was appropriate under O.C.G.A. § 17-14-9 because the master client list of the defendant's employer was offered to the defendant for $100,000, evidence was presented that the list was worth between $200,000 and $225,000, the list ultimately sold for $17,500, and the employer lost commissions in excess of $21,000; the trial court also properly considered the defendant's ability to pay and the factors contained in O.C.G.A. § 17-14-10. DuCom v. State, 288 Ga. App. 555, 654 S.E.2d 670 (2007), cert. denied, No. S08C0598, 2008 Ga. LEXIS 383 (Ga. 2008).
Court upheld a restitution order based on a surgeon's testimony that a recommended surgical procedure that cost $15,000 was not for cosmetic purposes but to allow the victim greater ease of movement, and based on evidence of the defendant's financial situation, the defendant's bachelor's and master's degrees, the defendant's employment, and the defendant's future earning potential as set forth in O.C.G.A. § 17-14-10. Regent v. State, 306 Ga. App. 616, 703 S.E.2d 81 (2010).
Trial court was authorized under O.C.G.A. § 17-14-9 to order the defendant to pay the victim's medical expenses as restitution for damages caused by the defendant's simple battery of the victim in violation of O.C.G.A. § 16-5-23(a) because the court's finding that the victim was injured by and had incurred costs as a result of the defendant's criminal behavior toward the victim was not clearly erroneous; the order for restitution did not exceed the amount of costs the victim incurred, and even if others at the scene could have also kicked the victim, that did not negate the defendant's liability for damages caused by the defendant's role in the attack. Elsasser v. State, 313 Ga. App. 661, 722 S.E.2d 327 (2011), cert. denied, No. S12C0949, 2012 Ga. LEXIS 555 (Ga. 2012).
Hearing.
- Former Code 1933, §§ 27-3008 - 27-3010 (see O.C.G.A. §§ 17-14-8 -17-14-10) contemplated a hearing and specific written findings by the court in determining whether the court will order restitution and the amount thereof; thus, the law does not deny defendants due process rights to a hearing on the damage issue. Cannon v. State, 246 Ga. 754, 272 S.E.2d 709 (1980).
Interest.
- Restitution ordered under O.C.G.A. § 17-14-9 may rightfully include interest on the victim's damages. Patrick v. State, 184 Ga. App. 260, 361 S.E.2d 251 (1987).
As it is used in the statutory provisions relating to restitution, "damages" includes interest. Corbin v. State, 202 Ga. App. 464, 415 S.E.2d 14 (1992).
No restitution based on untried offense.
- Since there was no accusation or evidence relating to a particular theft, the trial court could not order restitution for that theft as a condition of probation even if the court was aware of an untried charge relating to that theft. Robinson v. State, 169 Ga. App. 763, 315 S.E.2d 277 (1984).
If defendant acquiesced at trial, defendant could not complain on appeal.
- If the defendant acquiesced at trial with the on-the-record statement of the state asserting that the defendant was "now in accord with" the state's asserted restitution figures, the effect of such acquiescence deprived the defendant of the right to complain on appeal of the amount of restitution ordered. Westmoreland v. State, 192 Ga. App. 173, 384 S.E.2d 249 (1989).
Standard of proof.
- Sufficiency of the evidence to support an order of restitution in a criminal case should be measured by the civil standard of preponderance of the evidence. Lawrenz v. State, 194 Ga. App. 724, 391 S.E.2d 703 (1990); Britt v. State, 232 Ga. App. 780, 503 S.E.2d 653 (1998).
Restitution not based on coindictees.
- Restitution award to be paid by the defendant upon conviction of theft by taking was limited to the amount of money the defendant was shown to have taken, not the total amount taken by the defendant and the defendant's coindictees. Rice v. State, 226 Ga. App. 770, 487 S.E.2d 517 (1997).
Payments to persons not named as victims in indictment.
- In a prosecution for conversion of payments made by home-buyers' for real property improvements, the defendant was properly ordered to make payments directly to the subcontractors for work which the subcontractors performed, notwithstanding that the subcontractors were not named as victims in the indictment, since the home-buyers could have recovered such amounts in a civil action. Buchanan v. State, 248 Ga. App. 489, 546 S.E.2d 869 (2001).
Restitution not available for crime that did not cause damage.
- Under O.C.G.A. §§ 17-14-2(2) and17-14-9, restitution was not available for the defendant's conviction for leaving the scene of an accident in violation of O.C.G.A. § 40-6-270(a) because the damage to the other vehicle was solely attributable to the collision between the cars; the defendant's failure to stop after the collision neither caused nor contributed to the damage. Zipperer v. State, 299 Ga. App. 792, 683 S.E.2d 865 (2009).
Cited in Jarrett v. State, 161 Ga. App. 285, 287 S.E.2d 746 (1982); Patterson v. State, 161 Ga. App. 85, 289 S.E.2d 270 (1982); Sutton v. State, 190 Ga. App. 56, 378 S.E.2d 491 (1989); Howard v. State, 213 Ga. App. 542, 445 S.E.2d 532 (1994); Jones v. State, 246 Ga. App. 857, 542 S.E.2d 584 (2000); Beall v. State, 252 Ga. App. 138, 555 S.E.2d 788 (2001), overruled on other grounds, 324 Ga. App. 289, 750 S.E.2d 375 (2013).
RESEARCH REFERENCES
ALR.
- Measure and elements of restitution to which victim is entitled under state criminal statute - payment for installation of alarm or locks or change of locks due to burglary, attempted burglary, or felonious breaking and entering, 44 A.L.R.6th 301.
Propriety, measure, and elements of restitution to which victim is entitled under state criminal statute - cruelty to, killing, or abandonment of, animals, 45 A.L.R.6th 435.