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How do you terminate state probation for misdemeanor when victim unwilling to accept or waive restitution

Temecula, CA |
Filed under: Criminal defense

I am a civil attorney with no experience in criminal law. My family law client was convicted (misdemeanor) for vandalism of a television in her own home b/c the television was owned by her estranged adult daughter. She has complied with all terms of probation (14 months in), paid all fines and fees, etc. The only obstacle is that her estranged daughter will not cooperate in receiving and/or waiving restitution of about $250-$500. She refuses to communicate or cooperate. As a result, my client cannot terminate probation in order to reinstate her nursing license to become employed. She is between the rock and a hard place. Is there a way to compel restitution, post bond, etc. so that she can terminate her probation. Thank you for your time.

I believe the daughter has even refused to provide the court with her restitution amount so it is in a state of limbo

Attorney Answers 3

Posted

In addition to what Mr. Driessen stated . . . . A victim has a California constitutional right to restitution. It sounds like she is being deliberately obstinate about this knowing the effect it will have on your client.

You can deal directly with the DA on this. But here is a suggestion, which my colleagues will undoubtedly weigh in on for you: have the restitution converted to a civil judgment. That removes it from the realm of the criminal justice system. A defendant is not supposed to be kept on probation simply because the restitution has not been paid. If all other conditions and obligations have been fulfilled by the conclusion of the probationary period, the unpaid amount converts to a civil judgment like any other unsecured debt.

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Gayle Anne-Marie Gutekunst

Gayle Anne-Marie Gutekunst

Posted

I'm suggesting you accelerate this process by asking the court to convert the amount now, paving the way for your client to have her license restored.

Posted

Criminal restitution is handled through the courts. Typically the court has a victim witness office that coordinates restitution payments. This makes sense because you do not want a criminal to have any further contact with a victim. I have never seen a restitution order where the defendant was to be in contact with the victim. I would go to the criminal court with the restitution amount (this should be a set amount ordered by the court) and make the payment at the courthouse.
Robert Driessen

Mr. Driessen is a former Deputy DA in Orange County with over 8 years of criminal law experience. Nothing stated on this site shall in anyway be construed as legal advice, or as creating any attorney client relationship. If you would like to hire Mr. Driessen, feel free to contact him at www.theocduiguy.com.

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Posted

In addition to the suggestions of the other attorneys, some district attorney offices have a victim advocate type position that follows up with the payment of restitution. It might be a good idea to give the DA a call to inquire, and you may be able to go thought them. If you haven't already, you could also put her case on calendar and explain her situation to the judge. She is entitled to a hearing on the restitution amount, so perhaps the judge could set such a hearing. Good luck.

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