Bill As Introduced H.334

BILL AS INTRODUCED H.334

2007 Page 1

H.334

Introduced by Representatives Grad of Moretown, Clarkson of Woodstock, Donaghy of Poultney, Gervais of Enosburg, Jewett of Ripton and Marek of Newfane

Referred to Committee on

Date:

Subject: Criminal procedures; restitution

Statement of purpose: This bill proposes a number of changes to restitution procedures. The bill:

(1) provides that a properly recorded restitution order constitutes a lien on real property owned by the offender;

(2) permits the restitution unit to adjust restitution payments on the basis of insurance or other payments without notifying the court;

(3) authorizes the restitution unit to report offenders’ payment histories to credit-reporting agencies and obtain credit reports from credit-reporting agencies about offenders;

(4) establishes guidelines for reporting restitution information to the treasurer as unclaimed property, and permits the treasurer to establish a program to assist other state agencies holding property not presumed to be abandoned to locate the owners of the property;

(5) adds loss of income and loss of support to the damages compensable by restitution;

(6) requires wage withholding and security for restitution orders greater than $10,000.00;

(7) provides that an offender may be charged with violating probation for nonpayment of a restitution obligation incurred before July 1, 2004;

(8) allows victims to request restitution post-sentencing if it was not requested at sentencing or if expenses arose afterward;

(9) provides that filing an action to enforce a restitution order in superior or small claims court gives the court exclusive jurisdiction over the proceeding;

(10) makes restitution obligations exempt from any statute of limitations period;

(11) gives priority to unpaid restitution obligations when disbursing proceeds from the sale of vehicles forfeited for DUI violations; and

(12) eliminates the sunset provisions for the restitution unit and the crime victims’ restitution special fund.

AN ACT RELATING TO RESTITUTION

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 12 V.S.A. § 2901 is amended to read:

§ 2901. CREATION OF JUDGMENT LIEN

A final judgment issued in a civil action or a restitution order entered under section 7043 of Title 13 shall constitute a lien on any real property of a judgment debtor if recorded as provided in this chapter.

Sec. 2. 13 V.S.A. § 5362 is amended to read:

§ 5362. RESTITUTION UNIT

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(c) The restitution unit shall have the authority to:

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(4) Investigate and verify the amount of insurance or other payments paid to or for the benefit of a victim, and adjust the amount disbursed to the victim from the crime victims’ restitution special fund accordingly without further notice to the court.

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(6) Report offenders’ payment histories to credit reporting agencies and obtain credit reports from credit reporting agencies about offenders who are not complying with a restitution order or a restitution agreement.

Sec. 3. 13 V.S.A. § 5363 is amended to read:

§ 5363. CRIME VICTIMS’ RESTITUTION SPECIAL FUND

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(b)(1) There shall be deposited into the fund:

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(3) If a victim who is entitled to receive an advance payment of restitution from the crime victims’ restitution special fund cannot be located, the restitution unit shall report the amount to the treasurer who shall report it as unclaimed property. In no event shall collected restitution payments be deposited with the treasurer or subject to ultimate deposit in the general or education fund.

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Sec. 4. 13 V.S.A. § 5365 is added to read:

§ 5365. ACCESS TO FINANCIAL RECORDS

(a) As used in this section:

(1) “Depositor” means an owner of an account in a financial institution and includes “share account holders” of credit unions.

(2) “Financial institution” means a savings and loan association, a trust company, a savings bank, an industrial bank, a banking organization, a commercial bank, a savings and loan association or a credit union organized under the laws of this state or authorized to do business in this state.

(4) “Offender” means a person who owes restitution.

(5) “Restitution” means an unsatisfied obligation to pay restitution that was ordered in connection with a criminal case and about which, prior to the issuance of the order, the offender had notice and an opportunity to contest the amount owed.

(6) “Restitution unit” means the state of Vermont restitution unit.

(b) Upon receipt of a written request from the restitution unit to identify depository accounts held by an offender, a financial institution shall search its depositor records in order to identify accounts in which the offender has an ownership or beneficial interest.

(c) A financial institution shall notify the restitution unit of all accounts identified in response to a request filed under subsection (b) of this section. The notification shall contain the following information, if available to the financial institution through its search procedure, for each account identified:

(1) The full name, date of birth, and address that the offender provided for himself or herself to the financial institution.

(2) The offender’s Social Security number.

(3) The offender’s account number.

(4) The amount of deposits contained in the offender’s account.

(d) The financial institution shall not provide notice in any form to a depositor identified by the restitution unit pursuant to this section. Failure to provide notice to a depositor shall not constitute a violation of the financial institution’s duty of good faith to its customers.

(e) A financial institution may charge the restitution unit a fee for services provided under this section, provided that the fee shall not exceed the actual costs incurred by the financial institution.

(f) The information provided by the restitution unit to a financial institution under this section shall be confidential and shall be used only for the purpose of collecting unpaid restitution.

Sec. 5. 13 V.S.A. § 7043 is amended to read:

§ 7043. RESTITUTION

(a)(1) Restitution shall be considered in every case in which a victim of a crime, as defined in subdivision 5301(4) of this title, has suffered a material loss.

(2) For purposes of this section, “material loss” means uninsured property loss, uninsured out-of-pocket monetary loss, loss of income, loss of support, and uninsured medical expenses.

(b) When ordered, restitution may include:

(1) return of property wrongfully taken from the victim;

(2) cash, credit card, or installment payments paid to the restitution unit; or

(3) payments in kind, if acceptable to the victim.

(c) In awarding restitution, the court shall make findings with respect to:

(1) The total amount of the material loss incurred by the victim. If sufficient documentation of the material loss is not available at the time of sentencing, the court shall set a hearing on the issue, and notice thereof shall be provided to the offender.

(2) The offender’s current ability to pay restitution, based on all financial information available to the court, including information provided by the offender.

(d)(1) An order of restitution shall establish the amount of the material loss incurred by the victim, which shall be the restitution judgment order. In the event the offender is unable to pay the restitution judgment order at the time of sentencing, the court shall establish a restitution payment schedule for the offender based upon the offender’s current and reasonably foreseeable ability to pay, subject to modification under subsection (k) of this section.

(2)(A) Every order of restitution shall:

(i) include the offender’s name, address and social security number;

(ii) include the name, address, and telephone number of the offender’s employer; and

(iii) require the offender, until his or her restitution obligation is satisfied, to notify the restitution unit within 30 days if the offender’s address or employment changes, including providing the name, address, and telephone number of each new employer.

(B) [Repealed.]

(e) If the amount of restitution ordered is $10,000.00 or more and is not paid in full at sentencing:

(1) a payment schedule imposed by the court shall require that payments are made through wage withholding; and

(2) timely payments shall be secured by security interests in all real and personal property then owned or later acquired by the offender.

(e)(1)(f)(1) If not paid at the time of sentencing, restitution may be ordered as a condition of probation, supervised community sentence, furlough, preapproved furlough, or parole if the convicted person is sentenced to preapproved furlough, probation, or supervised community sentence, or is sentenced to imprisonment and later placed on parole. A person shall not be placed on probation solely for purposes of paying restitution. An offender may not be charged with a violation of probation, furlough, or parole for nonpayment of a restitution obligation incurred after July 1, 2004.

(2) The department of corrections shall work collaboratively with the restitution unit to assist with the collection of restitution. The department shall provide the restitution unit with information about the location and employment status of the offender.

(f)(g)(1) When restitution is requested but not ordered, the court shall set forth on the record its reasons for not ordering restitution.

(2) If restitution was not requested at the time of sentencing, or if expenses arose after the imposition of sentence or the entry of a restitution order, a victim may file a motion with the sentencing court to reopen the case in order to consider a request for restitution. A motion under this subdivision shall be filed within one year after the sentence is imposed.

(g)(h) Restitution ordered under this section shall not preclude a person from pursuing an independent civil action for all claims not covered by the restitution order.

(h)(1)(i)(1) The court shall transmit a copy of a restitution order to the restitution unit, which shall make payment to the victim in accordance with section 5363 of this title.

(2) To the extent that the victims compensation board has made payment to or on behalf of the victim in accordance with chapter 167 of this title, restitution, if imposed, shall be paid to the restitution unit, which shall make payment to the victims compensation fund.

(i)(j) The restitution unit may bring an action to enforce a restitution order against an offender in the superior or small claims court of the county where the offender resides or in the county where the order was issued. In an action under this subsection, a restitution order issued by the district court shall be enforceable in superior or small claims court in the same manner as a civil judgment. Superior and small claims court filing fees shall be waived for an action under this subsection.

(j)(k) All restitution payments shall be made to the restitution unit, with the exception of restitution relating to a conviction for welfare fraud ordered under this section and recouped by the economic services division. The economic services division shall provide the restitution unit with a monthly report of all restitution collected through recoupment. This subsection shall have no effect upon the collection or recoupment of restitution ordered under Title 33.

(k)(l) The sentencing court may modify the payment schedule of a restitution order if, upon motion by the restitution unit or the offender, the court finds that modification is warranted by a substantial change in circumstances.

(l)(m) If the offender fails to pay restitution as ordered by the court, the restitution unit may file an action to enforce the restitution order in superior or small claims court. The court in which the action was filed shall have exclusive jurisdiction over the proceeding. The court shall set the matter for hearing and shall provide notice to the restitution unit, the victim, and the offender. If the court determines the offender has failed to comply with the restitution order, the court may take any action the court deems necessary to ensure the offender will make the required restitution payment, including:

(1) amending the payment schedule of the restitution order;

(2) ordering, in compliance with the procedures required in Rule 4.1 of the Vermont Rules of Civil Procedure, the disclosure, attachment, and sale of assets and accounts owned by the offender;

(3) ordering the offender’s wages withheld pursuant to subsection (n) of this section; or

(4) ordering the suspension of any recreational licenses owned by the offender.

(m)(1)(n)(1) Any monies owed by the state to an offender who is under a restitution order, including lottery winnings and tax refunds, shall be used to discharge the restitution order to the full extent of the unpaid total financial losses, regardless of the payment schedule established by the courts.

(2) When an offender is entitled to a tax refund, any restitution owed by the offender shall be withheld from the refund pursuant to subchapter 12 of chapter 151 of Title 32.

(3)(A) For all Vermont lottery games, the lottery commission shall, before issuing prize money of $500.00 or more to a winner, determine whether the winner has an outstanding restitution order. If the winner owes restitution, the lottery commission shall withhold the entire amount of restitution owed and pay it to the restitution unit. The remainder of the winnings, if any, shall be sent to the winner. The winner shall be notified by the restitution unit of the offset prior to payment to the victim and given a period not to exceed 20 days to contest the accuracy of the information.