2004 Regular Session
To: Judiciary B
By: Representative Formby, Akins, Barnett, Beckett, Bentz, Chism, Davis, Denny, Ellington, Fillingane, Lott, Martinson, Mayhall, Moore, Reed, Reeves, Rotenberry, Snowden, Staples, Turner
AN ACT TO CREATE THE COMPREHENSIVE CRIME RESTITUTION AND REIMBURSEMENT ACT; TO PROVIDE FOR THE PROCEDURE FOR COURT-ORDERED RESTITUTION; TO AMEND SECTIONS 99-37-3 AND 99-37-5, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO BRING FORWARD SECTIONS 99-37-9, 99-37-11, 99-37-13, 99-37-15 AND 99-37-17, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) (a) In addition to any punishment and supplemental to other specific provisions requiring restitution, the court shall order the defendant to make restitution to the victim for:
(i) Damage or loss caused directly or indirectly by the defendant's offense; and
(ii) Damage or loss related to the defendant's criminal episode, unless it finds clear and compelling reasons not to order such restitution. Restitution may be monetary or nonmonetary restitution. The court shall make the payment of restitution a condition of probation. An order requiring the defendant to make restitution to a victim does not remove or diminish the requirement that the court order payment to the Crime Victims Compensation Fund. Payment of an award by the Crime Victims Compensation Fund shall create an order of restitution to the Crime Victims Compensation Fund, unless specifically waived in accordance with subparagraph (b)(i).
(b) (i) If the court does not order restitution, or orders restitution of only a portion of the damages, as provided in this section, it shall state on the record in detail the reasons therefor.
(ii) An order of restitution entered as part of a plea agreement is as definitive and binding as any other order of restitution, and a statement to such effect must be made part of the plea agreement. A plea agreement may contain provisions that order restitution relating to criminal offenses committed by the defendant to which the defendant did not specifically enter a plea.
(c) The term "victim" as used in this section and in any provision of law relating to restitution means each person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant's offense or criminal episode, and also includes the victim's estate if the victim is deceased, and the victim's next of kin if the victim is deceased as a result of the offense.
(2) (a) When an offense has resulted in bodily injury to a victim, a restitution order entered under subsection (1) shall require that the defendant:
(i) Pay the cost of necessary medical and related professional services and devices relating to physical, psychiatric and psychological care, including nonmedical care and treatment rendered in accordance with a recognized method of healing.
(ii) Pay the cost of necessary physical and occupational therapy and rehabilitation.
(iii) Reimburse the victim for income lost by the victim as a result of the offense.
(iv) In the case of an offense which resulted in bodily injury that also resulted in the death of a victim, pay an amount equal to the cost of necessary funeral and related services.
(b) When an offense has not resulted in bodily injury to a victim, a restitution order entered under subsection (1) may require that the defendant reimburse the victim for income lost by the victim as a result of the offense.
(3) (a) The court may require that the defendant make restitution under this section within a specified period or in specified installments.
(b) The end of such period or the last such installment shall not be later than:
(i) The end of the period of probation if probation is ordered;
(ii) Five (5) years after the end of the term of imprisonment imposed if the court does not order probation; or
(iii) Five (5) years after the date of sentencing in any other case.
(c) Notwithstanding this subsection, a court that has ordered restitution for a misdemeanor offense shall retain jurisdiction for the purpose of enforcing the restitution order for any period, not to exceed five (5) years, that is pronounced by the court at the time restitution is ordered.
(d) If not otherwise provided by the court under this subsection, restitution must be made immediately. If the restitution ordered by the court is not made within the time period specified, the court may continue the restitution order through the duration of the civil judgment provision set forth in subsection (5).
(4) If a defendant is placed on probation or paroled, complete satisfaction of any restitution ordered under this section shall be a condition of such probation or parole. The court may revoke probation, and the Parole Board may revoke parole, if the defendant fails to comply with such order.
(5) An order of restitution may be enforced by the state, or by a victim named in the order to receive the restitution, in the same manner as a judgment in a civil action. The outstanding unpaid amount of the order of restitution bears interest as may be ordered by the court, and, when properly recorded, becomes a lien on real estate owned by the defendant. If civil enforcement is necessary, the defendant shall be liable for costs and attorney's fees incurred by the victim in enforcing the order.
(6) (a) The court, in determining whether to order restitution and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense.
(b) The criminal court, at the time of enforcement of the restitution order, shall consider the financial resources of the defendant, the present and potential future financial needs and earning ability of the defendant and his or her dependents, and such other factors which it deems appropriate.
(7) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the prosecution. The burden of demonstrating the present financial resources and the absence of potential future financial resources of the defendant and the financial needs of the defendant and his or her dependents is on the defendant. The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.
(8) The conviction of a defendant for an offense involving the act giving rise to restitution under this section shall estop the defendant from denying the essential allegations of that offense in any subsequent civil proceeding. An order of restitution hereunder will not bar any subsequent civil remedy or recovery, but the amount of such restitution shall be set off against any subsequent independent civil recovery.
(9) When a corporation or unincorporated association is ordered to make restitution, the person authorized to make disbursements from the assets of such corporation or association shall pay restitution from such assets, and such person may be held in contempt for failure to make such restitution.
(10) (a) Any default in payment of restitution may be collected by any means authorized by law for enforcement of a judgment.
(b) The restitution obligation is not subject to discharge in bankruptcy, whether voluntary or involuntary, or to any other statutory or common-law proceeding for relief against creditors.
(11) (a) The court may order the clerk of the court to collect and dispense restitution payments in any case.
(b) The court may order the Department of Corrections to collect and dispense restitution and other payments from persons remanded to its custody or supervision.
(12) (a) Issuance of income deduction order with an order for restitution shall be as follows:
(i) Upon the entry of an order for restitution, the court shall enter a separate order for income deduction if one has not been entered.
(ii) The income deduction order shall direct a payor to deduct from all income due and payable to the defendant the amount required by the court to meet the defendant's obligation.
(iii) The income deduction order shall be effective so long as the order for restitution upon which it is based is effective or until further order of the court.
(iv) When the court orders the income deduction, the court shall furnish to the defendant a statement of his or her rights, remedies, and duties in regard to the income deduction order. The statement shall state:
1. All fees or interest which shall be imposed.
2. The total amount of income to be deducted for each pay period.
3. That the income deduction order applies to current and subsequent payors and periods of employment.
4. That a copy of the income deduction order will be served on the defendant's payor or payors.
5. That enforcement of the income deduction order may only be contested on the ground of mistake of fact regarding the amount of restitution owed.
6. That the defendant is required to notify the clerk of court within seven (7) days after changes in the defendant's address, payors and the addresses of his or her payors.
(b) Enforcement of income deduction orders shall be as follows:
(i) The clerk of court or probation officer shall serve an income deduction order and the notice to payor on the defendant's payor unless the defendant has applied for a hearing to contest the enforcement of the income deduction order.
(ii) 1. Service by or upon any person who is a party to a proceeding under this subsection shall be made in the manner prescribed in the Mississippi Rules of Civil Procedure for service upon parties.
2. Service upon the defendant's payor or successor payor under this subsection shall be made by prepaid certified mail, return receipt requested.
(iii) The defendant, within fifteen (15) days after having an income deduction order entered against him or her, may apply for a hearing to contest the enforcement of the income deduction order on the ground of mistake of fact regarding the amount of restitution owed. The timely request for a hearing shall stay the service of an income deduction order on all payors of the defendant until a hearing is held and a determination is made as to whether the enforcement of the income deduction order is proper.
(iv) The notice to payor shall contain only information necessary for the payor to comply with the income deduction order. The notice shall:
1. Require the payor to deduct from the defendant's income the amount specified in the income deduction order and to pay that amount to the clerk of the court.
2. Instruct the payor to implement the income deduction order no later than the first payment date which occurs more than fourteen (14) days after the date the income deduction order was served on the payor.
3. Instruct the payor to forward within two (2) days after each payment date to the clerk of the court the amount deducted from the defendant's income and a statement as to whether the amount totally or partially satisfies the periodic amount specified in the income deduction order.
4. Specify that, if a payor fails to deduct the proper amount from the defendant's income, the payor is liable for the amount the payor should have deducted plus costs, interest and reasonable attorney's fees.
5. Provide that the payor may collect up to Five Dollars ($5.00) against the defendant's income to reimburse the payor for administrative costs for the first income deduction and up to Two Dollars ($2.00) for each deduction thereafter.
6. State that the income deduction order and the notice to payor are binding on the payor until further notice by the court or until the payor no longer provides income to the defendant.
7. Instruct the payor that, when he or she no longer provides income to the defendant, the payor shall notify the clerk of the court and shall also provide the defendant's last known address and the name and address of the defendant's new payor, if known, and that, if the payor violates this provision, the payor is subject to a civil penalty not to exceed Two Hundred Fifty Dollars ($250.00) for the first violation or Five Hundred Dollars ($500.00) for any subsequent violation.
8. State that the payor shall not discharge, refuse to employ or take disciplinary action against the defendant because of an income deduction order and shall state that a violation of this provision subjects the payor to a civil penalty not to exceed Two Hundred Fifty Dollars ($250.00) for the first violation or Five Hundred Dollars ($500.00) for any subsequent violation.
9. Inform the payor that when he or she receives income deduction orders requiring that the income of two (2) or more defendants be deducted and sent to the same clerk of the court, the payor may combine the amounts that are to be paid to the depository in a single payment as long as he or she identifies that portion of the payment attributable to each defendant.
10. Inform the payor that if the payor receives more than one income deduction order against the same defendant, he or she shall contact the court for further instructions.
(v) The clerk of court shall enforce income deduction orders against the defendant's successor payor who is located in this state in the same manner prescribed in this subsection for the enforcement of an income deduction order against an original payor.
(vi) A person may not discharge, refuse to employ or take disciplinary action against an employee because of the enforcement of an income deduction order. An employer who violates this provision is subject to a civil penalty not to exceed Two Hundred Fifty Dollars ($250.00) for the first violation or Five Hundred Dollars ($500.00) for any subsequent violation.
(vii) When a payor no longer provides income to a defendant, the payor shall notify the clerk of the court and shall provide the defendant's last known address and the name and address of the defendant's new payor, if known. A payor who violates this provision is subject to a civil penalty not to exceed Two Hundred Fifty Dollars ($250.00) for the first violation or Five Hundred Dollars ($500.00) for a subsequent violation.
SECTION 2. Section 99-37-3, Mississippi Code of 1972, is amended as follows:
99-37-3. (1) When a person is convicted of criminal activities which have resulted in pecuniary damages, in addition to any other sentence it may impose, the court may order that the defendant make restitution to the victim under the provisions of this chapter or Section 1 of House Bill No. ____, 2004 Regular Session; provided, however, that the justice court shall not order restitution in an amount exceeding Five Thousand Dollars ($5,000.00).
(2) In determining whether to order restitution which may be complete, partial or nominal, the court shall take into account:
(a) The financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant;
(b) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; and
(c) The rehabilitative effect on the defendant of the payment of restitution and the method of payment.
(3) If the defendant objects to the imposition, amount or distribution of the restitution, the court shall, at the time of sentencing, allow him to be heard on such issue.
(4) If the court determines that restitution is inappropriate or undesirable, an order reciting such finding shall be entered, which should also state the underlying circumstances for such determination.
SECTION 3. Section 99-37-5, Mississippi Code of 1972, is amended as follows:
99-37-5. (1) When a defendant is sentenced to pay a fine or costs or ordered to make restitution, the court may order payment to be made forthwith or within a specified period of time or in specified installments. If a defendant is sentenced to a term of imprisonment, an order of payment of a fine, costs or restitution shall not be enforceable during the period of imprisonment unless the court expressly finds that the defendant has assets to pay all or part of the amounts ordered at the time of sentencing.
(2) When a defendant sentenced to pay a fine or costs or ordered to make restitution is also placed on probation or imposition or execution of sentence is suspended, the court may make payment of the fine or costs or the making of restitution a condition of probation or suspension of sentence. Such offenders shall make restitution payments directly to the victim. As an alternative to a contempt proceeding under Sections 99-37-7 through 99-37-13, the intentional refusal to obey the restitution order or a failure by a defendant to make a good faith effort to make such restitution may be considered a violation of the defendant's probation and may be cause for revocation of his probation or suspension of sentence.
(3) When the court orders a defendant to pay restitution, it may follow the provisions of this chapter or the provisions of Section 1 of House Bill No. ____, 2004 Regular Session.
SECTION 4. Section 99-37-9, Mississippi Code of 1972, is brought forward as follows:
99-37-9. The term of imprisonment for contempt for failure to make restitution shall be set forth in the commitment order, and shall not exceed one (1) day for each Twenty-five Dollars ($25.00) of the restitution, or thirty (30) days if the order of the restitution was imposed upon conviction of a violation or misdemeanor, or one (1) year in any other case, whichever is the shorter period. A person committed for failure to make restitution shall be given credit toward payment for each day of imprisonment at the rate specified in the commitment order.
SECTION 5. Section 99-37-11, Mississippi Code of 1972, is brought forward as follows:
99-37-11. If it appears to the satisfaction of the court that the default in the payment of a fine or restitution is not contempt, the court may enter an order allowing the defendant additional time for payment, reducing the amount thereof or of each installment or revoking the fine or order of restitution or the unpaid portion thereof in whole or in part.
SECTION 6. Section 99-37-13, Mississippi Code of 1972, is brought forward as follows:
99-37-13. A default in the payment of a fine or costs or failure to make restitution or any installment thereof may be collected by any means authorized by law for the enforcement of a judgment. The levy of execution for the collection of a fine or restitution shall not discharge a defendant committed to imprisonment for contempt until the amount of the fine or restitution has actually been collected.
SECTION 7. Section 99-37-15, Mississippi Code of 1972, is brought forward as follows:
99-37-15. Whenever an offender in the custody of the Department of Corrections is paroled, placed on earned probation or other form of release, and when such offender has been sentenced to make restitution pursuant to Section 99-37-3 but with respect to whom payment of all or a portion of the restitution was suspended until his release from confinement, the making of restitution shall be a condition of the offender's release. The Commissioner of Corrections shall establish a schedule by which payment of the restitution may be resumed. In fixing the schedule and supervising the released offender's performance thereunder, the commissioner shall consider the factors specified in subsection (2) of Section 99-37-3. The commissioner shall provide to the sentencing court a copy of the schedule and any modifications thereof. Such offenders shall make restitution payments directly to the victim.
As an alternative to a contempt proceeding under Sections 99-37-7 through 99-37-13, the intentional refusal to obey the restitution order or a failure by an offender to make a good faith effort to make such restitution may be considered a violation of an offender's release and may be cause for revocation of his parole, earned probation or other form of release.
SECTION 8. Section 99-37-17, Mississippi Code of 1972, is brought forward as follows:
99-37-17. (1) Nothing in this chapter limits or impairs the right of a person injured by a defendant's criminal activities to sue and recover damages from the defendant in a civil action. Evidence that the defendant has paid or been ordered to pay restitution pursuant to this chapter may not be introduced in any civil action arising out of the facts or events which were the basis for the restitution. However, the court shall credit any restitution paid by the defendant to a victim against any judgment in favor of the victim in such civil action.
(2) If conviction in a criminal trial necessarily decides the issue of a defendant's liability for pecuniary damages of a victim, that issue is conclusively determined as to the defendant, if it is involved in a subsequent civil action.
SECTION 9. This act shall take effect and be in force from and after July 1, 2004.