Most people worry about the possibility of being sentenced to a term of imprisonment when they are facing criminal charges – and with good reason. The threat of jail or prison time is certainly one possible sentencing option if you are convicted of a criminal offense. There are, however, other sentencing terms that may be ordered in lieu of, or in addition to, a term of imprisonment. Restitution, for example, may be ordered as part of a sentence. For those who are unfamiliar with the concept, an Omaha criminal defense lawyer from Petersen Law Office explains restitution.
Restitution is a monetary remedy that can be awarded in a civil or a criminal case. In a criminal case, restitution may be ordered if a defendant accepted guilt as part of a guilty plea agreement or was found guilty at trial. The purpose of restitution is to compensate the victim of a crime for financial losses the victim suffered as a result of the defendant’s wrongful conduct. Restitution only covers actual losses, meaning it does not take into account the pain and suffering or other non-economic losses suffered by a victim.
For example, if a defendant is found guilty of embezzlement, the court might order the defendant to pay restitution in an amount equal to the amount embezzled. Likewise, if a defendant is convicted of assault, restitution might be ordered to cover the victim’s actual medical bills and lost wages. In that case, restitution will not include the value of any pain and suffering the defendant caused.
Restitution is also different from fines that a defendant may be ordered to pay as part of a sentence. A fine is intended to be punitive in nature, meaning its purpose is to punish the defendant. Most criminal statutes allowing for a fine up to a specified amount, depending on the severity of the crime. The sentencing judge has the discretion to forego ordering a fine, to order a minimal fine, or to order the defendant to pay the maximum allowable fine without the need to justify the amount of fine ordered. Restitution, on the other hand, must be directly tied to identifiable financial losses suffered by a victim.
The Restitution Hearing
If the prosecuting attorney has requested restitution, and a judge is considering ordering restitution, in a criminal case the judge will typically set the matter for a separate restitution hearing after the trial or acceptance of a guilty plea agreement. At the restitution hearing, the prosecuting attorney will present evidence showing the actual damages suffered by the victim in the case. The defendant has the right to object to the nature or amount of restitution requested by the State. In addition, the amount of restitution may be capped in the statute that authorizes restitution.
Typically, restitution is paid through the probation department during the course of the defendant’s time on probation. Unfortunately, however, getting a court to order a defendant to pay restitution is often the easy part for a victim. The more difficult task is getting the defendant to actually pay the restitution. The defendant will be ordered to disclose assets and income to the court; however, not all defendants are entirely truthful. The reality is that victims often need to conduct their own search for assets if they hope to see the money owed to them. It is also possible to have a restitution award reduced to a judgment that is then recorded, creating a lien against assets owned by the defendant. In some cases, it may even be worthwhile to pursue a civil lawsuit against the defendant in the pursuit of compensation. Beware, however, because if restitution was ordered in your case, and you fail to pay the amount owed in full, it may cause your probation to be considered unsuccessfully completed which could have negative consequences down the road.
Contact an Omaha Criminal Defense Lawyer at Petersen Law Office
If you are currently facing criminal charges in the State of Nebraska, it is in your best interest to consult with an experienced Omaha criminal defense lawyer immediately about the specific facts and circumstances of your case. Contact a Nebraska criminal defense attorney at Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case.