Attorney Joseph Soler
A quick guide to restitution in a criminal case in Florida
Updated: Mar 22, 2020
If you are facing criminal charges where a victim allegedly suffered loss, such as a theft case where money or property was taken and or a DUI or battery where there was injury or property damage and you are looking at a potential jail or prison sentence, this guide will teach you all you need to know about restitution and how the payment of restitution can result in you getting a sentence that does not involve jail or prison.
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Restitution in criminal cases in Florida
Restitution in a criminal case in Florida generally refers to an amount of money that a judge orders a defendant to pay to a victim, in order to make the victim whole for whatever loss the victim suffered as a result of the crime. (Restitution is almost always ordered as a monetary (money) amount, although technically a judge could order a non-monetary form of restitution.)
When can restitution be ordered in a criminal case
Florida law says that in addition to any punishment (such as jail and/or probation) that the judge may impose, the judge can also order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant's offense; and
2. Damage or loss related to the defendant's criminal episode.
Typical cases were a person is ordered to pay restitution are: theft cases where there was money or property stolen, shoplifting cases where merchandise was taken and the store did not get it back, DUI’s where there was injury or property damage, and fraud cases involving stolen money or property. These are just some common examples; restitution can be ordered in any criminal case if it can be shown that the victim suffered a monetary loss as a result of the crime.
Restitution when the crime led to physical injury or death
When an offense has resulted in bodily injury to a victim, the defendant can be required to:
1. Pay the cost of necessary medical and related services (this also includes the cost of devices related to physical, psychiatric, and/or psychological care.
2. Pay the cost of physical therapy and rehabilitation.
3. Reimburse the victim for lost income.
If the crime resulted in death to a victim, the defendant can be ordered to pay funeral and related services.
How is the amount of restitution established between the criminal attorney and prosecutor?
A defendant can agree to a restitution amount. This is sometimes done through plea negotiations with the prosecutor. A good defense attorney will request proof of the amount of damages, injury, amount of money allegedly stolen, etc. by requiring the state and victim to turn over proof of hospital bills, receipts, or proof of the value of the items taken. If the state and defense attorney agree as to a restitution amount, then it can later be ordered as a condition of probation when a plea is entered and the defendant is sentenced. If the prosecutor and criminal defense lawyer cannot agree on a restitution amount, then restitution can be established at a restitution hearing, where the state will have to prove the amount of restitution in front of the judge.
How does the defendant pay the restitution?
Restitution is typically ordered to be paid back as a condition of the defendant’s probation. This way the judge can ensure that the defendant pays the restitution and if the defendant fails to pay, then the probation can be violated and the defendant then incarcerated. For felony cases in Sarasota and Manatee Counties, restitution is typically paid through JPay, however a judge could order probation to be paid back in another manner. In misdemeanor cases, restitution is usually paid through the county court probation department.
Restitution can be used to negotiate a better plea offer in a criminal case
In criminal cases, whether they be misdemeanors or felonies, where a victim has suffered a major loss, such as serious injury or had a lot of money stolen, the prosecutor on the case may ask for a significant jail or prison sentence. If the defendant saves up and is willing, in good faith, to pay a significant amount of money back in restitution, the criminal defense attorney can attempt to negotiate a better deal for the defendant. Sometimes this can mean a significantly reduced jail or prison sentence or a sentence of probation only.
Strategically speaking, this can create a “win-win” situation--where the defendant gets a better deal, the victim gets their money back, and the prosecutor gets to tell the victim that he or she got them their money back. In plea negotiations, an experienced criminal defense attorney will look for these “win-win” situations and be able to use them to negotiate good deals for the client.
The need to pay restitution can be used to get a downward departure and a sentence that does not involve prison
This is applicable to felonies where the prosecutor is seeking a prison sentence. One of the statutory grounds for a downward departure on a felony scoresheet is the “The need for payment of restitution to the victim outweighs the need for a prison sentence.” If the defendant is “scoring to prison” (they have a score of more than 44 points which requires the court to sentence to prison, then “the need for payment of restitution” can be utilized to obtain for the defendant a “downward departure” which will allow the judge to sentence the defendant to a non-prison sentence (typically a county jail and/or term of probation).
In order to do this, a defendant will usually, in good-faith, come up with a significant amount of the restitution in advance and agree to pay the rest of the restitution in payments over a period of probation.