Last week the court of appeals decided State v. Swann, concluding (among other things) that a prosecutor’s statement alone is insufficient to support a restitution award. A lot of recent cases have reached the same conclusion – State v. Replogle, 181 N.C. App. 579 (2007), State v. Calvino, 179 N.C. App. 219 (2006), and State v. Shelton, 167 N.C. App. 225 (2004), to name a few. Though the restitution statute specifically says the “court is not required to make findings of fact or conclusions of law” as to the amount of restitution, G.S. 15A-1340.36(a), a restitution award must be supported by some evidence adduced at trial or sentencing. Form AOC-CR-611 guides the parties through the proper procedure – including reference to the requirement that the court consider “information presented by the parties” as to the damage caused and the defendant’s ability to pay.
Speaking of restitution, something I am asked about from time to time is whether a criminal restitution order can be converted into a civil judgment. I gather this sometimes happens at a hearing related to probation, where the court finds that probation is terminated, with any restitution still owed to be docketed as a civil judgment.
An award of restitution in a criminal case is no bar to a victim’s right to bring a civil action against the defendant based on the same conduct. G.S. 15A-1340.37. It is by no means a given, however, that a restitution award and a related civil judgment will be the same. Different procedural rules and defenses might apply, and different types of harm might be compensable (for example, pain and suffering are off limits for restitution, State v. Wilson, 158 N.C. App. 235 (2003)). Indeed, under G.S. 1-15.1(b), a civil defendant is expressly authorized to contest any determination of damages made in a related criminal case, and the amount of restitution ordered is not admissible into evidence in the civil case (although any restitution actually paid must be credited against a civil judgment in favor of the same victim, G.S. 15A-1340.37).
In State v. Clemmons, 111 N.C. App. 569 (1993), the court of appeals said the trial court erred when it ordered the defendant to sign a confession of judgment in favor of the victims as a condition of probation. A confession of judgment, the court said, “is a procedure in a civil action . . . [and] no criminal court can compel any Defendant to do something which is within the realm of a civil forum.” Perhaps it would be okay for a confession of judgment to be part of a negotiated plea, but that’s different from a court-ordered conversion.
Under G.S. 15A-1340.38, orders for restitution issued under G.S. 15A-1340.34(b) – which pertains only to cases in which a victim is entitled to restitution under Article 46 of Chapter 15A, the Crime Victims’ Rights Act (CVRA) – may be “enforced in the same manner as a civil judgment” when they exceed $250. These orders must be docketed as specified in G.S. 15A-1340.38(b) when part of a non-probationary sentence, or as specified in G.S. 15A-1340.38(c) when ordered as a condition of probation (essentially, the judgment is docketed right away, but cannot be executed upon the defendant’s property until probation is terminated or revoked and the judge has made a finding that restitution in a sum certain remains owed). The existence of this special provision for CVRA cases suggests to me that restitution orders may not be docketed civilly in other cases.
I’m interested to hear your thoughts and to learn more about what’s going on in practice.
I FILED AA FRAUD CASE AGAINST MY EX WIFE LAST YEAR WHICH SHE WAS FOUND GUILTY.SHE WAS GIVEN PROBATION AND ORDERED TO PAY ME 5800.00 IN RESTITUTION. I HAVE NOT RECIEVED A DIME YET AND WAS WONDERING DO I NEED TO FILE A CIVIL JUDJEMENT ON HER TO COLLECT MY RESTITUTION? THE RESTITUTION WAS PART OF HER SENTENCE AND THE D.A. TELLS ME SHE MAY NOT PAY, BUT SHE WILL END UP IN JAIL POSSIBLY.AND THE CASE IS A FELONY CASE. IM REALLY AT A LOSS TO UNDERSTAND HOW THIS WILL PLAY OUT.SHE HAS 3 YEARS OF PROBATION TO SERVE .WELL I GUESS I WILL BE FILING A CIVIL LAWSUIT AGAINST HER TO TRY TO RECOVER MY LOSS.
My Daughter’s mom stole items from me. She was put on probation and was box cared sentences. She was court ordered to pay me restitution of $8,000 in April of 2011. By December 2011 she had paid nothing and the amount had went up almost most $10,000. Like to have that interest on my savings account. Her probation was violated for continuing to use drugs and she had 7 more warrants issued while on probation 2 weeks to the day she was sentence for my case against her and then she ran from the law for most of 2011. She had to serve 2.5 years in prison. She was released from prison November 2013. Has been working at a job since April 2014. It was mentioned in court by my attorney that she still owed the restitution. As of today she has not paid a plug nickel. So what do I do?
I recently purchased a vehicle from a person for $7,000. Turns out they did not own it and they kept my $7,000. Charges of obtaining property under false pretenses have been made and we are going to court. I am learning about restitution and am scared I will never get my money back. I scraped and saved that money, am a mom of 4 and a full-time student. What can I do to ensure I get my money back? As a result, I lost income and have nothing but a huge financial hardship for my family. The man who did it was apparently wanted in FL because he had his 6th probation violation and was on probation for contract fraud and has to pay restitution of under $50,000 to his victim in FL. Our first court date they did not show up…he claimed he was on bed rest for his heart (except he lives across the street from me and I saw him mowing his lawn) then the 2nd time they decided to fire their court attorney and hire their own, so we now have a 3rd court date October 6th. I just feel re-victimized over and over again and our family needs our money desperately.
I have a 1998 case where my offender was charged with 2 sex crimes from 1990. He was order a restitution order for any damages from those acts. I was a minor. When I turned 20, I gathered all the documents and contacted his parole officer who told me the statute of limitations had expired on the restitution order. I was devastated but now reading through everything online, I’m reading there is no deadline on these orders. Is this correct? Can I take him to civil court or get restitution now? Thank you,
A person hit and killed my brother in North Carolina, was convicted of a misdemeanor and order to pay restitution, The judge made it a civil judgement and that was 3 yrs ago and not one penny has been paid, I was told there was nothing the court could do, how can I get my 21,000?
SO I have a question…. If an offender owes their home outright and they are now being sued in a civil case and yes they have been incarcerated but are appealing their case. With this situation is the house protected under North Carolina law against the possible civil judgement? And if it is where would I find that rule.
THanks
Can the state garnish lawsuit settlement award to satisfy a restitution imposed for legal representation?
My husband is a registered sex offender. He has worked in 3 years (because of being a registered sex offender) and has no source of income at all. He is not in probation. What would happen if he does not pay his restitution? We live in Durham County, NC.
After divorce the judge ordered my ex to take liquid assets (she did) but ordered her to pay equal amount owing on two mortgages and dept. This is in NC a 50-50 State. She moved out of state, quit her nurses job. She hasn’t paid anything since 2015 divorce. Recently moved in with her mom 50 miles away. Is there a statue of limitation to take contempt order?