Criminal Defense Attorney Nashville & Litigation Attorney | SBL

Defendants accused of theft or vandalism are often ordered by the Court to pay restitution to the victim, which is a good alternative to jail sentences. Most defendants think restitution is unavailable to them because they cannot afford to pay the victim back the full value of the loss, but this is not always the case. The court can vary the amount and payment schedule for each defendant. So defendants have one question: How much do I have to pay?

A great example of restitution analysis is found in Tennessee v. Davis. Nashville’s Judge Mark Fishburn took a guilty plea from this defendant to the indicted charge of Vandalism Under $500. A hearing was held at a later date to determine the value of the loss and restitution. The victim testified that his vandalized car required $2,100 to fix. The defendant previously signed an agreement to pay back $1,800 and had already paid $1,000 before she entered a guilty plea. The Court found the value of the damages to be $1,800 and ordered the defendant to pay the outstanding $800.

On appeal, the defendant argued: (1) that there was no documentation evidence of the value of loss; (2) there was no assessment of defendant’s ability to pay; and (3) the court ordered her to pay restitution in an amount greater than the indicted charge (“under $500”). The Court began by saying that there is “no set formula” to determine restitution. It is a balance between the defendant’s ability to pay and the amount the victim lost.

The Court denied each of the defendant’s arguments. First, no other evidence was necessary since the victim testified to the amount of the damages. The trial Court found the victim credible and noted the agreement to pay $1,800 by both the parties. Second, even though the defendant was found indigent and appointed an attorney, there was no evidence presented at the restitution hearing regarding the defendant’s ability to pay. That meant her finances could not be assessed at the hearing. Finally, the statute regarding restitution (T.C.A. § 40-35-304) does not prohibit an amount of restitution greater than the indicted charge. Therefore, the judge was free to order restitution greater than $500. The Court of Appeals ruled against the Defendant, saying the restitution amount was properly addressed.

By failing to present evidence at her restitution hearing of her ability to pay, this defendant did not put enough in front of the court for the judge to consider a reduction in her restitution amount. When evidence is lacking, the court must use what is on the record. Just because the defendant was declared indigent for purposes of being appointed an attorney, it did not waive the duty to present evidence as to her ability to pay at the hearing.

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Criminal Defense Attorney Nashville & Litigation Attorney | SBL