I was charged and convicted of theft by means of fraudulent schemes in 2008 and was sentenced to one year in prison (I had no prior felony charges) and I am currently on year 3 of 5 year probation tail. The restitution order entered back then, which I do not even remember agreeing to, is for $60,000. I know for fact that my victim was either reimbursed by insurance, or, negotiated down the amount in question by half, which would be $30,000. I also have co-defendant who will probably never be able to pay. I would like to petition the court to re-examine the evidence and make victim show actual damages. Can anyone advise me if this is the best approach? Also, I have paid approximately $18,000 down on restitution.
Not knowing the specifics of your case I can certainly tell you the law as it relates generally to criminal restitution orders. Criminal restitution orders are handed down either at sentencing or at a separate criminal restitution hearing after sentencing. That is the time at which the amount must be questioned by you or your attorney. There are statutory requirements as to what can be ordered in terms of criminal restitution and that is why they hold such hearings as certain things are allowable (such as value of things stolen and hospital bills because of a violent crime) and certain things are not allowable (such as money for pain and suffering which can only be recovered in a separate civil lawsuit). If an insurance company has reimbursed someone that is generally irrelevant as the criminal restitution money must then be paid to the insurance company...this is why criminal restitution is paid to the clerk of the court who is then tasked with making sure it goes to the right party. Whether or not your co-defendant can pay is irrelevant...you are what is called "jointly and severally liable," which means if he cannot pay anything but you can pay the full amount then you are on the hook for the full amount, and if you pay it he is off the hook and you both no longer owe anything. Regarding the Court revisiting the issue that is extraordinarilly difficult because that is why they have the criminal restitution hearing (if it is not addressed at sentencing). That was the time for you (and really your lawyer) to argue the amount that was ordered. Because it is part of your sentence the only way to challenge the order would be through a Rule 32 petition for post-conviction relief. Assuming you pleaded guilty you would have been required to file that petition within 90 days of having been sentenced. There are ways to get around the 90 day time limitation, but it is generally extraordinarily difficult without the assistance of a lawyer and I have found that judges are very reluctant to revisit restitution amounts after someone has pleaded guilty to a crime. Good luck.
I agree with everything in Mr. Barber's response. See an attorney who handles criminal appeals and Rule 32's to discuss your chances of revisiting the court order. As for early termination of probation, typically courts will not terminate your probation early if you still owe money. In fact, there is a statute that allows them to extend your probation to give you more time to pay restitution. They don't always do that but sometimes enter a Criminal Restitution order ( which you cannot discharge in bankruptcy) at the end of your term. You can always ask to be terminated early from probation but I doubt the court will do it with you still owing...
