Restitution and Civil Judgments

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.

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