Probation Over, But Restitution Unpaid: What Now?

What is Restitution in Criminal Law?

According to CDL, restitution involves returning or compensating for something lost or stolen. In criminal law, it is a financial payment made by a defendant to the court or directly to a victim, intended to cover the victim’s monetary losses caused by the defendant’s actions [1].

The amount of restitution is determined at a restitution hearing, often held alongside the sentencing hearing, although it can occur later if the full extent of the victim’s losses is not yet known.

Restitution amounts equal the victim’s actual economic loss, which is the cost required to restore the victim to their financial state before the crime.

A victim, for restitution purposes, includes anyone who suffered an economic loss due to the defendant’s actions, even if they are not the named victim in the case.

For example, if a defendant assaults a husband, the wife may claim lost wages for time taken off work to care for him. Similarly, in a murder or manslaughter case, the victim’s family might seek restitution for funeral expenses.

Restitution payments are normally ordered as a condition of probation if the defendant is place on either felony or misdemeanor probation. If the defendant is sentenced to actual jail then the defendant’s restitution payments are put on hold until the defendant is released from jail

Consequences of Owing Restitution After Probation Ends

If your probation concludes and you still owe restitution, the debt remains. According to California Penal Code 1214, any unpaid victim restitution at the end of probation is treated as a civil money judgment against the defendant [2].

This civil judgment allows the person owed restitution to initiate collection proceedings. During these proceedings:

• You could be responsible for collection costs.
• The debt accrues interest at 10% per year.
• Your credit rating may be negatively impacted.

California law mandates two types of restitution for those convicted of crimes:

• Restitution fines, payable to the State of California:
• Felony cases: $300 to $10,000.
• Misdemeanor cases: $150 to $1,000.
• Direct restitution to victims for economic losses resulting from the crime.

In every case in which the defendant is granted probation, the court must make the payment of restitution fines and victim restitution orders a condition of probation.

What is the California Victims Compensation Fund?

According to MRLF, California’s Victims Compensation Fund is essential for residents to know about. When other sources cannot cover a crime victim’s needs, this program can assist with medical expenses, rehabilitation and therapy, relocation, or funeral costs [3].

While a judge determines the amount of a restitution “fine” that will be paid to the Victims Compensation Fund, victims themselves are entitled by law to recover victim compensation for the full amount of their losses

Prosecutors cannot reduce this compensation during plea bargains, as victims’ rights are protected by law. Interestingly, some offenders in California pay restitution for crimes they haven’t been tried or convicted of. This occurs when a defendant agrees to a plea bargain, and a related charge is dismissed, requiring the defendant to sign a “Harvey Waiver.”

What is a Harvey Waiver and How Does it Affect Restitution?

A Harvey waiver is an agreement by a defendant allowing dismissed counts in a plea deal to be considered during sentencing for the remaining charges. This ensures that victim restitution is ordered to compensate for any losses.

California Penal Code 1192.3b recommends the use of a Harvey waiver. According to this statute:

If restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, as described in this section, the court shall obtain a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 from the defendant as to the dismissed count.

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References:

1. https://www.calcriminaldefenselawyers.com/restitution-in-criminal-law-california-courts
2. https://www.shouselaw.com/ca/blog/criminal-defense/what-happens-if-i-complete-my-probation-but-still-owe-restitution/
3. https://www.mirandarightslawfirm.com/blog/criminal-restitution-in-california/