In the State of Florida, people accused of crimes that result in damage to property or injury to another can be made to pay restitution to the alleged victim, or victims. This is in addition to a civil lawsuit, which is a separate matter handled in an entirely different court. I am a criminal defense attorney, and for purposes of this entry, will only discuss the criminal penalty of restitution.
Restitution is a common condition of probation for charges such as grand theft
, and if there was a traffic accident, DUI
. The purpose of restitution is to compensate the alleged victim for the damage or physical injuries sustained as a result of the crime.
When I was a Miami-Dade Assistant State Attorney
, I dealt with a number of cases where alleged victims had made outlandish claims for restitution. Some of their claims were in excess of $100,000!
First of all, the Miami-Dade State Attorney's Office, and the Broward State Attorney's Office are not collection agencies. They do represent their alleged victims, however, restitution must be reasonable, it must be related to the criminal incident, and it must be proven. An alleged victim claiming that her $20 million-dollar Picasso was stolen from her home during a burglary means nothing unless she can produce receipts and other documents not only authenticating her claim, but proving the fair market value at the time of the burglary as well.
It's only money, you might say. Not that bad when I'm facing time in prison. Well, on one hand it's a small price (no pun intended) to pay for what might be a Pretrial Diversion
sentence or a term of probation. But an alleged victim's claim of restitution can seriously hold up plea negotiations. If the crime is grand theft auto
and the alleged victim is claiming that his car suffered thousands of dollars worth of damage as a result of the crime, this allegation may prevent the State from offering Pretrial Diversion because of the restitution amount.
That's correct. In order to qualify for Pretrial Diversion (other than having no priors and having the alleged victim's approval), the restitution amount must be less than $5,000. If the restitution claims are high, then the State will not offer Pretrial Diversion unless the balance exceeding $5,000 is paid in advance. That means that if the restitution claims are for $10,000, the State will require you to pay $5,000 in advance before even being considered for Pretrial Diversion.
Restitution, as a part of a probation sentence, will likely be broken up into monthly payments that the accused can afford. It is a key element of our justice system that we do not imprison people due to their inability to pay financial obligations. When our country was first formed, that was something that our founders agreed on. No "debtors prisons." Imagine if we did incarcerate people for defaulting on their bills. Given today's foreclosure crisis, almost half the country would be behind bars.
However, failure to pay restitution is a probation violation
. But you can only be violated if it is a willful failure to pay. That is, the State must prove that you had the ability to pay the restitution yet you chose not to. If you lost your job or could not afford the monthly payments, that is not a crime and is not legal grounds for violating your probation.
Failure to make restitution is considered a technical probation violation
yet is taken very seriously, especially if the alleged victim is calling the State Attorney's Office, complaining to the prosecutor that he or she has not received any money. This violation is unfortunate, yet it is understandable. Consider all of the bills you pay now: rent, credit cards, FPL, student loans, car payments. Now add another bill on top of all of that. That's a restitution payment.
As a probation violation, failure to make restitution payments can sometimes be worked out by negotiating a reduction of the monthly amount paid. For instance, if you are on probation for grand theft and you must pay $100 a month in restitution, your criminal defense attorney may be able to negotiate a reduction, perhaps to $50 a month or less.
The alleged victim may not be pleased by this reduction, but frankly, the State Attorney's Office is not in the business of getting their victims paid. That is what the civil system is for. The Courts and the State Attorney's Office must see to it that justice is done, and if $25 a month is all you can afford, then so be it.
If restitution is made a condition of Pretrial Diversion, you must pay the entire amount within a 6-month period. Failure to complete your payments will get you removed from the program. That is why it is important for your criminal defense attorney to negotiate conditions of Pretrial Diversion that you are going to able to complete. The benefit is, if you complete all of your conditions of Pretrial Diversion, your case will be dismissed by the State and you will be eligible to have your record expunged
. If you received a withhold of adjudication yet successfully completed your probation, you may be eligible to have your record sealed
Just a quick sidenote: one crime where restitution CANNOT be ordered by the court is Leaving the Scene of an Accident, or LSA
. This is because LSA is a crime that involves a traffic accident, which in and of itself is not a crime. The only crime present is the fact that the accused person allegedly left the scene without exchanging information with the other driver, or waiting for the police to arrive.
Restitution must be related to the criminal offense. For instance, restitution on a burglary case makes sense because if somebody smashed a window, entered a home, and stole someone's belongings, it's logical that the Court would want the offender to pay for the damage and property taken. That's because the restitution is related to the criminal act.
In an LSA case, the restitution - the damage to the other guy's car - is not related to a criminal act. It is only related to a traffic accident, which is a civil matter. The crime of leaving the scene does not, by itself, cause any damage.
However, LSA cases that close out to probation will often involve restitution because two parties - the accused and the State - have agreed to it. If you take your LSA case to trial and are found guilty, the Court has no legal authority to impose restitution as a sentence. Get it? Bottom line is, if your LSA case involves weak evidence, it may be in your best interest to take the case to trial.
In conclusion, restitution is an important part of a sentence yet one that should not be accepted without first consulting a criminal attorney. I have spent years practicing in Miami and Broward and have dealt with restitution countless times. Don't get caught paying tens of thousands of dollars just because your alleged victim wants to make a buck. It is your right to have the amount proven to you! Don't sit back and accept responsibility for something you have not done. You have too many bills to pay as it is.
, a criminal defense attorney who practices in Miami-Dade and Broward County, today to schedule an in-person consultation, or a consultation over the phone. All consultations, whether by phone or face-to-face, are always free.