Restitution in Michigan is a victim's Constitutional right and mandatory. It cannot be excluded through a plea bargain or sentencing agreement. It is only awarded if the Defendant is convicted of a criminal allegation related to his or her conduct that gave rise to the restitution. Restitution even survives the death of the Defendant, and can be pursued against his or her estate. Under Michigan law, the Prosecutor is required to provide information to a victim concerning restitution. The Sentencing Court must order the Defendant to make full restitution as required by law to any victim of the Defendant's course of conduct that gives rise to the conviction, or to the victim's estate.
A victim is defined as an individual who suffers direct or threatened physical, financial, or emotional harm as the result of the commission of a crime, juvenile offense, or misdemeanor. Victim also include companies, corporations, government entities, or any other legal entity that suffers a direct physical or financial harm as the result of a crime, juvenile offense, or a misdemeanor. A person who was charged with offenses arising out of the same transaction as the charged levied against the Defendant is not considered to be a victim.
Civil litigation does not excuse the restitution requirement. However, the amount of restitution paid to a victim is set off against damages that a victim receives in compensation from a civil lawsuit. Hence, the victim cannot double dip. However, it is possible for the restitution order to be larger than the amount of a civil judgment. The Defendant may be ordered to even pay restitution concerning victims for which he or she was not convicted.
In determining the amount of restitution to order the court shall consider the amount of loss sustained by any victim as a result of the offense. The amount of restitution may also include the cost of the labor necessary to determine the value of the property lost (for example an appraisal), as well as the labor cost involved in replacing the lost property. The ability of the Defendant to pay the restitution is irrelevant in determining the amount of restitution owed. The fair market value of the property on the date of the loss is generally ordered, unless that value cannot be determined or is impractical to ascertain. In this instance, the resplacement value of the property is used for the restitution amount. In cases of death or serious bodily impairment, the court may order up to 3 times the amount of restitution otherwise allowed.
Codefendants may be held jointly and severally liable for the total amount of restitution. If one codefendant does not pay, the other codefendant(s) is/are still responsible for the entire amount.
Examples of items that are recoverable as restitution:
1. "Buy money" in drug offenses
2. individuals or institutions that have provided services to a victim as a result of the Defendant's conduct
3. Expenses spent by the parents of a minor victim for items such as: child care expenses; income loss; mileage; lorging or housing; meals.
4. Interest on unpaid child support and medical bills.
5. Money paid by an insurance company for a loss claimed by a victim.
6. Psychological counseling
7. Physical and occupational therapy
8. Expenses related to the death of a victiom, such as: funeral and related services; lost tax deduction or credit;
9. Attorney's fees incurred to the victim because of the loss, including assisting in the investigation and attending Court hearings.
The Court is required to hold a restitution hearing if there is an actual dispute, properly raised at the sentencing hearing in respect to the type or amount of restitution. Hence, the issue as to the amount of restitution can be waived if the Defendant and/or the Defendant's attorney fail to raise the issue at the time of sentencing.
The Prosecution has the burden to prove the restitution by a preponderance of the evidence to the Court. The Defendant is not entitled for a jury determination concerning restitution. The rules of evidence do not apply at a restitution hearing, other than a claim of a privilege (for example - attorney client privilege). The Defendant is not required to testify at a restitution hearing, and his or her silence is not a consideration of the Court concerning any issue.
The sentencing Court is allowed to rely on the Presentence Investigation Report, which is presumed to be accurate, unless the Defendant challenges the information in the Report. The Prosecution must show with some precision the amount of loss if uncharged activitity is involved.
Restitution can be ordered from the Defendant's bond or bail if he or she personally paid their bond or bail. Proceeds for the sale of property forfeited also may be used to satisfy victims. Restitution must be ordered as a condition of probation or parole. The Court can order that income withholding or a wage assignment occur in which restitution and other payments are taken directly from the Defendant's paycheck. Failure to pay restitution can result in a revocation of probation or parole. The Michigan Department of Corrections typically deducts 50% of funds received by a prisoner over $50 and applies that amount to restitution.
An order of restitution remains in effect until it is satisfied in full. It is a judgment and a lien against all property of the Defendant in the amount of the specified restitution. It is not dischargeable in bankruptcy. If the conviction is set aside, the Defendant is not entitled to a refund for any sums of money paid.
Restitution can impact a Defendant far beyond the date of his or her sentencing. It is important to have legal counsel to preserve the issue of restitution, and try to minimize the amount of restitution ultimately awarded.
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