MISSISSIPPI LEGISLATURE
2015 Regular Session
To: Judiciary B
By: Representative Formby
AN ACT TO AMEND SECTIONS 99-37-1, 99-37-3, 99-37-5, 99-37-7, 99-37-9 AND 99-37-11, MISSISSIPPI CODE OF 1972, TO REVISE RESTITUTION TO CRIME VICTIMS; TO AMEND SECTIONS 97-19-67 AND 99-15-26, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 99-37-1, Mississippi Code of 1972, is amended as follows:
99-37-1. As used in this chapter:
(a) "Criminal activities" shall mean any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.
(b) "Pecuniary damages" shall mean all special damages, but not general damages, which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities and shall include, but not be limited to, the money equivalent of property taken, destroyed, broken or otherwise harmed, and losses such as medical expenses.
(c)
"Restitution" shall mean full * * * payment of pecuniary
damages to a victim.
(d) "Victim" shall mean any person whom the court determines has suffered pecuniary damages as a result of the defendant's criminal activities. "Victim" shall not include any coparticipant in the defendant's criminal activities, or any person knowingly participating in a criminal act at the time he became a victim.
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 * * * shall order that the defendant make
restitution to the victim; 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 * * * shall be complete, * * * 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.
* * *
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 * * *
shall order payment to be made forthwith or within a specified period of
time or in specified installments. Restitution shall be paid within three
(3) years of the order unless another provision of law provides another time
frame. 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 * * * shall 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 * * * shall be considered a violation of
the defendant's probation and * * * shall be cause for revocation of his
probation * * *,
suspension of sentence and cause for the offender to serve the remainder of
his sentence.
SECTION 4. Section 99-37-7, Mississippi Code of 1972, is amended as follows:
99-37-7. (1) When a
defendant sentenced to pay a fine or to make restitution defaults in the
payment thereof or of any installment, the court, on motion of the district attorney,
or upon its own motion, * * *may shall require him to show cause why his default
should not be treated as contempt of court, and * * * shall issue a show cause citation or
a warrant of arrest for his appearance.
(2) Unless the defendant
shows that his default was not attributable to an intentional refusal to obey
the order of the court or to a failure on his part to make a good faith effort
to make the payment, the court * * * shall find that his default
constitutes contempt and may order him committed until the fine or the
restitution, or a specified part thereof, is paid.
(3) A judicial officer shall not be held criminally or civilly liable for failure of any defendant to pay any fine or to make restitution if the officer exercises his judicial authority in accordance with subsections (1) and (2) of this section to require the payment of such fine or restitution.
(4) When a fine or an order of restitution is imposed on a corporation or unincorporated association, it is the duty of the person authorized to make disbursement from the assets of the corporation or association to pay the fine or make the restitution from those assets, and his failure to do so may be held to be contempt unless he makes the showing required in subsection (2) of this section.
SECTION 5. Section 99-37-9, Mississippi Code of 1972, is amended 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, * * * one (1) year in any other case or the
length of the original sentence which required restitution, whichever is
the * * * longer
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 6. Section 99-37-11, Mississippi Code of 1972, is amended 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 * * * which shall not exceed three (3) years unless
another provision of law provides another time frame.
SECTION 7. Section 97-19-67, Mississippi Code of 1972, is amended as follows:
97-19-67. (1) Except as may be otherwise provided by subsection (2) of this section, any person violating Section 97-19-55, upon conviction, shall be punished as follows:
(a) For the first
offense of violating said section, where the check, draft or order involved be
less than One Hundred Dollars ($100.00), the person committing such offense
shall be guilty of a misdemeanor and, upon conviction, shall be punished by a
fine of not less than Twenty-five Dollars ($25.00), nor more than Five Hundred
Dollars ($500.00), or by imprisonment in the county jail for a term of not less
than five (5) days nor more than six (6) months, or by both such fine and
imprisonment, in the discretion of the court * * *.
(b) Upon commission of
a second offense of violating said section, where the check, draft or order
involved is less than One Hundred Dollars ($100.00), the person committing such
offense shall be guilty of a misdemeanor and, upon conviction, shall be
punished by a fine of not less than Fifty Dollars ($50.00) nor more than One
Thousand Dollars ($1,000.00), or by imprisonment in the county jail for a term
of not less than thirty (30) days nor more than one (1) year, or by both such
fine and imprisonment, in the discretion of the court * * *.
(c) Upon commission of a third or any subsequent offense of violating said section, regardless of the amount of the check, draft or order involved, and regardless of the amount of the checks, drafts or orders involved in the prior convictions, the person committing such offense shall be guilty of a felony and, upon conviction, shall be punished by imprisonment in the State Penitentiary for a term of not less than one (1) nor more than five (5) years.
(d) Where the check, draft or order involved shall be One Hundred Dollars ($100.00) or more, the person committing such offense, whether same be a first or second offense, shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment in the State Penitentiary for a term of not more than three (3) years, or by both such fine and imprisonment, in the discretion of the court. Upon conviction of a third or any subsequent offense, the person convicted shall be punished as is provided in the immediately preceding paragraph hereof.
(2) Where the conviction
was based on a worthless check, draft or order given for the purpose of
satisfying a preexisting debt or making a payment or payments on a past-due
account or accounts, no imprisonment shall be ordered as punishment, but the
court may order the convicted person to pay a fine of up to the applicable
amounts prescribed in * * *
subsection (1)(a)(b) and (d) of this section.
(3) In addition to or in
lieu of any penalty imposed under the provisions of subsection (1) or
subsection (2) of this section, the court * * * shall order any
person convicted of violating Section 97-19-55 to make restitution in
accordance with the provisions of Sections 99-37-1 through 99-37-23 to the
holder of any check, draft or order for which payment has been refused.
(4) Upon conviction of any person for a violation of Section 97-19-55, when the prosecution of such person was commenced by the filing of a complaint with the court by the district attorney under the provisions of Section 97-19-79, the court shall, in addition to any other fine, fee, cost or penalty which may be imposed under this section or as otherwise provided by law, and in addition to any order as the court may enter under subsection (3) of this section requiring the offender to pay restitution under Sections 99-37-1 through 99-37-23, impose a fee in the amount up to eighty-five percent (85%) of the face amount of the check, draft or order for which the offender was convicted of drawing, making, issuing, uttering or delivering in violation of Section 97-19-55.
(5) It shall be the duty of the clerk or judicial officer of the court collecting the fees imposed under subsection (4) of this section to monthly deposit all such fees so collected with the State Treasurer, either directly or by other appropriate procedures, for deposit in the special fund of the State Treasury created under Section 99-19-32, known as the "Criminal Justice Fund."
(6) After the accused has complied with all terms of the statute and the complainant or victim has been paid, the district attorney's check unit may dispose of the accused's file after one (1) year has expired after the last audit.
SECTION 8. Section 99-15-26, Mississippi Code of 1972, is amended as follows:
99-15-26. (1) (a) In all criminal cases, felony and misdemeanor, other than crimes against the person, a crime of violence as defined in Section 97-3-2 or a violation of Section 97-11-31, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant made on or after July 1, 2014, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.
(b) In all misdemeanor criminal cases, other than crimes against the person, the justice or municipal court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.
(c) Notwithstanding Section 97-3-2, in all criminal cases charging a misdemeanor of domestic violence as defined in Section 99-3-7(5) or aggravated domestic violence as defined in Section 97-3-7(4), a circuit, county, justice or municipal court shall be empowered, upon the entry of a plea of guilty by the criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.
(d) No person having previously qualified under the provisions of this section shall be eligible to qualify for release in accordance with this section for a repeat offense. A person shall not be eligible to qualify for release in accordance with this section if charged with the offense of trafficking of a controlled substance as provided in Section 41-29-139(f).
(2) (a) Conditions which the circuit, county, justice or municipal court may impose under subsection (1) of this section shall consist of:
* * *
( * * *i) Performance of not more than nine
hundred sixty (960) hours of public service work approved by the court.
( * * *ii) Payment of a fine not to exceed
the statutory limit.
( * * *iii) Successful completion of drug,
alcohol, psychological or psychiatric treatment, successful completion of a
program designed to bring about the cessation of domestic abuse, or any
combination thereof, if the court deems treatment necessary.
( * * *iv) The circuit or county court, in
its discretion, may require the defendant to remain in the program subject to
good behavior for a period of time not to exceed five (5) years. The justice
or municipal court, in its discretion, may require the defendant to remain in
the program subject to good behavior for a period of time not to exceed two (2)
years.
(b) Conditions which the circuit or county court may impose under subsection (1) of this section also include successful completion of a regimented inmate discipline program.
(c) Conditions which the circuit or county court shall impose under subsection (1) of this section shall include restitution as provided in Section 99-37-1, et seq.
(3) When the court has imposed upon the defendant the conditions set out in this section, the court shall release the bail bond, if any.
(4) Upon successful completion of the court-imposed conditions permitted by subsection (2) of this section, the court shall direct that the cause be dismissed and the case be closed.
(5) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.
(6) This section shall take effect and be in force from and after March 31, 1983.
SECTION 9. This act shall take effect and be in force from and after July 1, 2015.