Utah Criminal Defense Attorney - Restitution

Complete Restitution or Court-Ordered Restitution

Utah's Crime Victim's Restoration Act makes a distinction between "complete" restitution and "court-ordered" restitution. Under Utah Code section 77-38a-302, complete restitution is the total amount determined by the court that is necessary to compensate a victim for damage or loss caused by the defendant. Court-ordered restitution is the amount ordered by the court to actually be paid by the defendant as part of a sentencing order. The two amounts are not necessarily the same.

Complete Restitution in a Utah Criminal Case

In determining complete restitution, a Utah court is required by law to consider "all relevant facts." The Utah code section setting forth restitution criteria specifically requires the court to consider property damage or loss, medical or other professional services relating to physical or mental health care, physical or occupational therapy and rehabilitation, income loss (only if the offense resulted in bodily injury to the victim), and up to five days of the victims determinable wages (only if the lost wages were due to theft or damage to tools or equipment items of a trade that were owned by the victim that were essential to the victim's employment at the time of the offense).

Court-Ordered Restitution in a Utah Criminal Case

In addition to the factors required to determine complete restitution, Utah Code section 77-38a-302 also requires a court to consider the following factors in determining court-ordered restitution: the rehabilitative effect on the defendant of the payment of restitution; the financial resources of the defendant; the burden that payment of restitution will impose on the defendant; the ability of the defendant to pay restitution on an installment basis or on other conditions ordered by the court; and any "other circumstances that the the court determines may make restitution inappropriate."

Restitution and Probation in Utah

When a court places a defendant on probation in a criminal, it is standard practice to require payment of restitution as a condition of probation. In deciding how much and on what terms restitution must be paid, the court is required to consider the above-noted factors in determining court-ordered restitution. But the court also may consider the defendant's ability to pay restitution in determining whether to grant probation. As an example, consider the following hypothetical case:

John is charged with and convicted of communications fraud. At the sentencing hearing, the court determines that "complete restitution" necessary to compensate the victim for his loss is $150,000. John does not have cash or other assets immediately available to pay that amount of restitution, but he does have a job that would allow him to make monthly restitution payments of at least $5,000. At the sentencing hearing, the prosecutor argues that because of the large amount of money involved in the fraud, John deserves to be sent to prison. John's criminal defense attorney argues that giving John a chance at probation allows him to make substantial payments toward making the victim whole.

The court in this hypothetical is required to try to balance competing interests. Punishment, deterrence, and incapacitation of a criminal are all interests that have been recognized as legitimate goals of the judicial system. But Utah court's have also recognized the importance of trying to make a victim whole again.

On the one hand, John's criminal fraud caused significant losses to the victim. Punishing John with a prison sentence could send a message to other potential criminals that such conduct will not be tolerated. Sending John to prison will also (at least in theory) prevent him from committing other frauds for the time that he is in prison.

On the other hand, putting John on probation and requiring a substantial monthly restitution payment would go a long way to making the victim whole. At a payment rate of $5,000 per month, over a period of 36 months (a typical length for felony probation), John would be able to pay $180,000 - more than enough to pay off the full $150,000 restitution amount (even at an interest rate of 10%).

Utah's appellate courts have traditionally given sentencing courts wide discretion in determining a appropriate sentences. A defendant's ability to pay restitution is just one of many factors that can be considered by a court in determining whether to grant or deny a defendant's request for probation.

Choosing a Criminal Defense Attorney in Utah

Having an experienced criminal defense attorney on your side can be critical to achieving a positive outcome in your Utah criminal case. With experience ranging from aggravated murder to white collar crime, and from drug possession to DUI, Utah criminal lawyer Stephen Howard has assisted clients in obtaining favorable outcomes in literally thousands of serious felony and misdemeanor cases. If you are facing criminal prosecution, contact us today to arrange for an initial consultation.

RELATED CRIMINAL DEFENSE QUESTIONS

• How do I find the best criminal defense attorney to help with my case?
• What should I do if the police want to ask questions about a criminal case?