AN ACT Relating to Restitution in Criminal Cases

UNOFFICIAL COPY AS OF 01/09/03 03 REG. SESS. 03 RS BR 246

AN ACT relating to restitution in criminal cases.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

Page 1 of 26

BR024600.100-246

UNOFFICIAL COPY AS OF 01/09/03 03 REG. SESS. 03 RS BR 246

Section 1. KRS 532.350 is amended to read as follows:

As used in this chapter, unless the context otherwise requires:

(1)[ (a) "Restitution" means any form of compensation paid by a convicted person to a victim for counseling, medical expenses, lost wages due to injury, or property damage and other expenses suffered by a victim because of a criminal act;

(b) "Reimbursement" means payment of expenses associated with incarceration, including but not limited to medical expenses, food, and lodging;

(c) "Sinking fund" means the fund created and used by local governments to provide maintenance of jail facilities and capital construction; improvement of law enforcement, jail, and judicial facilities; and other long-term expenditures associated with those areas; and

(d)] "Local government" means any city, county, urban-county, consolidated local, or charter county government;[.]

(2) "Loss from a criminal act" means expenses suffered by a crime victim, including but not limited to expenses as a result of counseling, medical treatment, lost wages due to injury, property damage, and other expenses suffered by a victim because of a criminal act. Interest shall be included as part of the expenses where so indicated by the General Assembly or by the trial court;

(3) "Reimbursement" means payment of expenses associated with incarceration, including but not limited to medical expenses, food, and lodging;

(4) "Restitution" means payment by a person in a criminal case to a victim for any loss from a criminal act;

(5) "Sinking fund" means the fund created and used by local governments to provide maintenance of jail facilities and capital construction; improvement of law enforcement, jail, and judicial facilities; and other long-term expenditures associated with those areas; and

(6) Definitions in KRS 441.005 apply to this chapter.

Section 2. KRS 532.032 is amended to read as follows:

(1) Restitution shall be ordered in all criminal cases where there is[to] a named victim and[, if there is a named victim,] shall be ordered in a manner consistent[, insofar as possible,] with the provisions of this section,[ and] KRS 439.563, 532.033, 533.020,[ and] 533.030, and any section of the Kentucky Revised Statutes which specifically provides for restitution, and it shall be in addition to [any other part of] the penalty for all offenses classified and designated[any offense] under this chapter. If for good cause shown a sentencing judge does not order restitution, then he or she shall enter written findings in the court record explaining the reasons therefor. The provisions of this section shall be mandatory and included in all orders of restitution and shall not be subject to suspension or nonimposition.

(2) If pretrial diversion is granted, then restitution shall be a part of the diversion agreement.

(3) If probation, shock probation, conditional discharge, or other alternative sentence is granted, then restitution shall be a condition of the sentence.

(4) If a person is sentenced to incarceration and paroled, then restitution shall be made a condition of parole.

(5) Restitution shall be subject to the following additional terms and conditions:

(a) Where property which is unlawfully in the possession of the defendant is in substantially undamaged condition from its condition at the time of the taking, return of the property shall be ordered in lieu of monetary restitution;

(b) The circuit clerk shall assess an additional fee of five percent (5%) to defray the administrative costs of collection of payments or property. This fee shall be paid by the defendant and shall inure to a trust and agency account which shall not lapse and which shall be used to hire additional deputy clerks and office personnel or increase deputy clerk or office personnel salaries, or a combination thereof; and

(c) An order of restitution shall not preclude the owner of property or the victim from proceeding in a civil action to recover damages from the defendant. A civil verdict shall be reduced by the amount paid under the criminal restitution order.

(6) The sentencing court may order interest on restitution in accordance with KRS 360.040, except that the judge may select the method of calculating the interest.

(7) Restitution payments ordered under this section shall be paid by the defendant to the clerk of the sentencing court or, if available, to a court-authorized program run by the county attorney or the Commonwealth's attorney of the county. When a defendant fails to make restitution ordered to be paid through the circuit clerk or, if available, to a court-authorized program run by the county attorney or the Commonwealth's attorney, the circuit clerk or court-authorized program shall notify the court.

Section 3. KRS 532.033 is amended to read as follows:

(1) When a judge orders restitution, the judge shall[:

(1) ]order the restitution to be paid to a specific person[ or organization] through the circuit clerk or a court-authorized program, who shall disburse the moneys as ordered by the court. The order of restitution shall conform with subsections (2) to (7) of Section 2 of this Act and include, at a minimum, the following specifications and conditions:

(a) If more than one person is named, specification of the amounts to be paid to each and the priority of payments;

(b)[(2)] Instructions for the prosecuting attorney to provide the mailing address for each person to whom restitution is to be paid to the clerk within three (3) days of the issuance of the order[Be responsible for overseeing the collection of restitution];

(c) [(3) Set]The total amount of restitution to be paid; and

(d) [(4) Set]The amount and frequency of each restitution payment or whether[require] the payment is to be made in a lump sum.[;

(5) Monitor the payment of the restitution to assure that payment is being made;]

(2)[(6)] If restitution is not being paid as ordered, then the judge shall hold a hearing, consistent with KRS 534.060, to determine why the restitution is not being paid.[;

(7) ] If the restitution is not being paid and no good reason exists therefor, then the judge shall institute sanctions against the defendant,[;] and if the defendant is under probation supervision, then the judge shall postpone the defendant's[(8) Not] release[ the defendant] from the provisions of the restitution order[probation supervision until restitution has been paid in full and all other aspects of the probation order have been successfully completed].

Section 4. KRS 532.160 is amended to read as follows:

(1) If a convicted person is unable to pay all court costs, fees, fines, reimbursement, any[and] other monetary penalties, or restitution at the time of sentencing, then the sentencing court may, upon a proper showing under KRS 425.501 and consistent with KRS 23A.205, 24A.175, 534.020, and KRS 534.060, issue a criminal garnishment order for all fines under KRS Chapter 534 or KRS 346.185 and for all court costs, fees, reimbursement, and restitution[, and reimbursement charges in this chapter].

(2) A criminal garnishment applies to any of the following:

(a) A convicted person's earnings as defined in KRS 427.005;

(b) Indebtedness that is owed to a convicted person by a garnishee for amounts that are not earnings;

(c) Money that is held by a garnishee on behalf of a convicted person;

(d) The convicted person's personal property that is in the possession of a garnishee; and[or]

(e) If the garnishee is a corporation or other business entity, the shares and other[or] securities of that[a] corporation or other business entity, or any other[a] proprietary interest in that[a] corporation or other business entity that belongs to a convicted person.

(3) The debt associated with a criminal garnishment shall constitute a charge against the estate of any decedent owing moneys under this chapter.

(4) The sentencing court may[shall] combine all[ fines,] court costs, fees, fines, any other monetary penalty, restitution, and reimbursement charges in a single order of garnishment.[

(5) ] The sentencing court shall, after the payment of court costs under KRS 23A.205 or 24A.175, require full payment of restitution to the victim of the offense before any further payments of[ any] moneys to the government or a government agency.

(5)[(6)] The court shall order payments made under this section to be paid[ by the defendant directly to the person or organization specified by written order of the court. The court shall not order payments of an order of criminal garnishment to be made] through the circuit clerk[, except for those payments due from a person under the supervision of the Department of Corrections].

Section 5. KRS 431.200 is amended to read as follows:

Any person convicted of a misdemeanor or felony for taking, injuring, or destroying property shall restore the property or pay full restitution for the loss[make reparation in damages if not ordered as a condition of probation]. The sentencing court shall[in which the conviction is had, if applied to by verified petition made within ninety (90) days of the date the sentence was pronounced, may] order restitution in accordance with Section 2 of this Act[or give judgment against the defendant for reparation in damages,] and enforce collection by execution or other process. The court may order[ In a petition for restitution or reparation, the court shall cause the defendant, if in custody, to be brought into court, and demand of him if he has any defense to make to the petition. If he consents to the restitution or to reparation in damages in an agreed sum, the court shall give judgment accordingly. Otherwise] a jury to[shall] be impaneled to try the facts and ascertain the amount and the value of the property, or assess the damage, as the case may be.[ A failure to pursue this remedy shall not deprive the person aggrieved of his civil action for the injury sustained].

Section 6. KRS 532.210 is amended to read as follows:

(1) Any misdemeanant or a felon who has not been convicted of, pled guilty to, or entered an Alford plea to a violent felony offense may petition the sentencing court for an order directing that all or a portion of a sentence of imprisonment in the county jail be served under conditions of home incarceration. Such petitions may be considered and ruled upon by the sentencing court prior to and throughout the term of the defendant's sentence.

(2) The sentencing judge shall study the record of all persons petitioning for home incarceration and, in his discretion, may:

(a) Cause additional background or character information to be collected or reduced to writing by the county jailer or misdemeanor supervision department;

(b) Conduct hearings on the desirability of granting home incarceration;

(c) Impose on the home incarceree such conditions as are fit, including restitution;

(d) Order that all or a portion of a sentence of imprisonment in the county jail be served under conditions of home incarceration at whatever time or intervals, consecutive or nonconsecutive, as the court shall determine. The time actually spent in home incarceration pursuant to this provision shall not exceed six (6) months or the maximum term of imprisonment assessed pursuant to this chapter, whichever is the shorter;

(e) Issue warrants for persons when there is reason to believe they have violated the conditions of home incarceration, conduct hearings on such matters, and order reimprisonment in the county jail upon proof of violation; and

(f) Grant final discharge from incarceration.

(3) All home incarcerees shall execute a written agreement with the court setting forth all of the conditions of home incarceration. The order of home incarceration shall incorporate that agreement and order compliance with its terms, including payment of restitution pursuant to Section 2 of this Act. The order and agreement shall be transmitted to the supervising authority and to the appropriate jail official.

(4) Time spent in home incarceration under this subsection shall be credited against the maximum term of imprisonment assessed for the defendant pursuant to this chapter.

(5) Home incarcerees shall be under the supervision of the county jailer except in counties establishing misdemeanor supervision departments, wherein they shall be under the supervision of such departments. Home incarcerees shall be subject to the decisions of such authorities during the period of supervision. Fees for supervision or equipment usage shall be paid directly to the supervising authority.

Section 7. KRS 532.220 is amended to read as follows:

The conditions of home incarceration shall include the following:

(1) The home incarceree shall be confined to his home at all times except when:

(a) Working at approved employment or traveling directly to and from such employment;

(b) Seeking employment;

(c) Undergoing available medical, psychiatric, or mental health treatment or approved counseling and after care programs;

(d) Attending an approved educational institution or program;

(e) Attending a regularly scheduled religious service at a place of worship; and

(f) Participating in an approved community work service program;

(2) Violation of subsection (1) of this section may subject the home incarceree to prosecution under KRS 520.030 (escape);