Restitution is a classification of damages that a criminal defendant may be required to pay to compensate a victim for pecuniary losses that the victim may have suffered as a result of the defendant’s alleged criminal acts. The idea is that folks who cause others to lose money or property or to acquire medical bills or other financial losses while committing a criminal act should be required to make whole the victim or victims of the criminal activity.
Some common examples of “Restitution” include the following expenses that often result from one’s criminal acts:
- Medical expenses;
- Property damage;
- Funeral expenses; and
- Any other verifiable out-of-pocket expenses that may have resulted from the perpetration of the crime in question.
The South Carolina Laws Relating to Criminal Restitution
According to South Carolina Code Section 17-25-322,
When a defendant is convicted of a crime which has resulted in pecuniary damages or loss to a victim, the court must hold a hearing to determine the amount of restitution due the victim or victims of the defendant’s criminal acts.
The restitution hearings must be held unless the defendant in open court agrees to the amount due, and in addition to any other sentence which it may impose, the court shall order the defendant make restitution or compensate the victim for any pecuniary damages. The defendant, the victim or victims, or their representatives or the victim’s legal representative as well as the Attorney General or the solicitor have the right to be present and be heard upon the issue of restitution at any of these hearings.
Factors That Are Considered When Determining Restitution
In assessing the manner, method, or amount of restitution a judge is instructed to consider the following:
- the financial resources of the defendant and the victim and the burden that the manner or method of restitution will impose upon the victim or the defendant;
- the ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court;
- the anticipated rehabilitative effect on the defendant regarding the manner of restitution or the method of payment;
- any burden or hardship upon the victim as a direct or indirect result of the defendant’s criminal acts; and
- the mental, physical, and financial well-being of the victim.
How is Restitution Paid?
With respect to payment of restitution, the South Carolina code requires that the restitution order is to specify a monthly payment schedule that will result in full payment for both restitution and collection fees by the end of eighty percent of the offender’s supervision period. In the absence of a monthly payment schedule, the Department of Probation, Parole, and Pardon Services shall impose a payment schedule of equal monthly payments that will result in full restitution and collections fee being paid by the end of eighty percent of an offender’s supervision period.
What is a Civil Judgment?
Civil judgments are completely separate from any related criminal actions and are the result of a successful civil action brought by a plaintiff. Civil damages are designed to restore a person to his or her state of being before he or she was wronged. Sometimes civil damages are designed to punish the wrongdoer or tortfeasor. Interestingly, some of the types of damages available under the civil law system closely mirror, if not completely mimic, those seen in criminal restitution. Namely, damages awarded for civil suits include medical expenses, property damage or other pecuniary losses resulting from one’s accident related injuries.
There is often a not-insubstantial overlap that causes very real concern for a criminal defendant that is also involved in a civil action stemming from the same incident. There is fear regarding the potential for “double-paying” restitution and a civil judgment.
A Civil Settlement Does Not Bar Criminal Restitution
In the case of State v. Jason Randall Morgan, the South Carolina Court of Appeals addressed the issue of civil settlements and criminal restitution and how one affects the other. In Morgan, the defendant was arrested for DUI after colliding with another motorist in the early morning hours. The other motorist resolved her civil dispute with the defendant by paying the limits of his motor vehicle insurance. In exchange, the injured motorist executed a covenant not to execute where she agreed not to seek civil damages against the defendant.
The State then resolved its outstanding criminal case with the defendant by way of a guilty plea to assault and battery in the second degree. The Defendant was sentenced to serve a probationary sentence where he was to pay the injured motorist’s medical bills, which were substantial.
The defendant appealed the court’s decision to enter the restitution order against the defendant, and the South Carolina Court of Appeals determined that restitution and a civil settlement are not mutually exclusive and that the trial court could order the defendant to pay restitution as an aspect of his probationary sentence despite the motorist and defendant having already resolved the defendant’s personal civil liability with the settlement and covenant. Attorney Sam Tooker at David R. Price, Jr., P.A., is very familiar with the Morgan case, as he was the assistant solicitor who prosecuted the case in Pickens County on behalf of the State at the trial court level. Attorney Tooker’s argument that restitution can be a condition of punishment independent of a civil settlement was affirmed by the decision of the Court of Appeals.
In short, an individual stands accused of committing a crime and also may be liable for a civil award, it is important to remember that a potential plaintiff or victim will not be prohibited from seeking a restitution order despite having settled a civil claim.
Consult with a Greenville, South Carolina Criminal Defense Attorney Today
If you are not satisfied by the underlying policy justifications which aim to reconcile the legally separate nature of restitution and civil damages, your first step should be to seek a reputable and knowledgeable attorney to work towards utilizing every legal avenue possible to help you achieve a result that can meet your very realistic expectations as much as possible under the current status of the relevant law. The experienced criminal defense and personal injury attorneys at David R. Price, Jr., P.A., can fight for you through this process, whether you are a defendant accused of a crime, or an injured person who has been harmed.
David Price is a Personal Injury, Civil Litigation, Collections, and Criminal Defense Attorney who practices in Greenville, SC. He graduated from the University of Georgia School of Law, and has been practicing law for 12 years. David Price believes in helping those who have been injured. Learn more about his experience by clicking here.