Summary of HB 172 (Crime Victims Restitution Act of 2005)

Tolling of Statute of Limitations

The running of the statute of limitations is tolled from the date of the commission of the alleged crime, or the act giving rise to the tort action, until the prosecution has become final; however, this period of time cannot exceed 6 years.

Victim Impact Form (replaces the Victim Impact Statement)

The Prosecuting Attorneys' Council shall come up with a form to be used by the victim that will identify the victim of the offense and the alleged perpetrators. The form may itemize any economic loss suffered by the victim and may identify any physical injury suffered by the victim along with its seriousness and permanence. It may also describe any change in the victim's personal welfare or familial relationships as a result of the offense and any other information related to the impact of the offense that the victim or the victim's family may wish to include.

If the defense engages in discussion with the prosecution for the purpose of reaching a plea agreement or other pretrial disposition, then the prosecution may provide to the defendant, upon his request, a copy of the victim impact form.

If the prosecution intends to present the information in the victim impact form to the court during the restitution hearing, then the prosecution must furnish a copy of the form to the defendant not less than 5 days prior to the hearing. The defendant has the right to rebut the information in the victim impact form. Regardless, the trial court has to consider the victim impact form that is presented to the court prior to the imposition of a sentence or determination of restitution.

If the victim was not allowed to fill out a victim impact form, then he or she may make a written victim impact statement to the State Board of Pardons and Paroles.

Civil Judgment

In any case where a fine or restitution is imposed as part of the sentence, then the fine and restitution will constitute a civil judgment against the defendant. The prosecuting attorney will request the issuance of a writ of fieri facias.

If the court orders a certain time frame to pay off the fine or restitution, then no execution shall be issued upon the writ of fi. fa. until that time frame has expired.

If the judgment is not paid in full, then it may be enforced through levy, foreclosure, garnishment, etc. Either the prosecuting attorney or the victim entitled to the funds may institute procedures to enforce the judgment.

The judgment will not become dormant during the period that the defendant is incarcerated or for 7 years thereafter.

The clerks cannot assess any fees authorized by law for civil actions.

Applies to criminal defendants and juvenile delinquents

This Act applies to anyone convicted either by adjudication of guilt or a plea of guilty or nolo contendre, and to juveniles adjudicated as having committed a delinquent act.

If the juvenile is under 18 and is determined by the court to be unable to pay, then making restitution is the responsibility of the parents, if the court or a jury finds by clear and convincing evidence that the parent or parents knew or should have known of the juveniles' propensity to commit such acts and the acts are due to the parent's or parents' negligence or reckless disregard for the juvenile's propensity to commit those acts.

Recoverable damages

The victim may recover all special damages that he or she may recover in a civil action against the defendant. These damages do not include any punitive damages or damages for pain and suffering, mental anguish, or loss of consortium. The victim may also recover reasonable costs of transportation to and from the court proceedings.

The burden of showing amount of the loss sustained by the victim is on the state.

If the ordering authority finds that more than one person contributed to the victim's loss, then it may apportion liability amongst the individuals.

Mandatory restitution

The trial judge shall order the defendant to make full restitution to any victim. If the defendant is on probation or parole, then the restitution is made a condition of the probation or parole.

A victim may waive his or her right to obtain restitution in writing.

Determining restitution

When determining the nature and amount of restitution, the ordering authority (trial judge, Dept. of Corrections, Board of Pardons and Paroles, or Dept. of Juvenile Justice) must consider the following factors:

(1) The financial resources and other assets of the offender or person ordered to pay restitution including whether any of the assets are jointly controlled;

(2) The earnings and other income of the offender or person ordered to pay restitution;

(3) Any financial obligations of the offender or person ordered to pay restitution, including obligations to dependents;

(4) The amount of damages;

(5) The goal of restitution to the victim and the goal of rehabilitation of the offender;

(6) Any restitution previously made;

(7) The period of time during which the restitution order will be in effect; and

(8) Other factors which the ordering authority deems to be appropriate.

If, subsequent to restitution being ordered pursuant to this article, a victim is convicted of a crime for which restitution is ordered, the ordering authority shall consider the previously ordered restitution as part of the financial resources of such victim.

The burden of showing the financial resources is on the defendant or the person ordered to pay restitution.

Set offs

If the victim gets restitution from the defendant, then the ordering authority will set off the amount and reduce the amount payable to the victim. The victim's award from the GA Crime Victims Compensation Board or any other governmental entity will be reduced by the amount received from the defendant.

Partial payments

If the defendant makes partial payments, then not less than half will go to restitution before it is applied to any fines, fees, forfeitures, costs, and surcharges.

The ordering authority may require the defendant to pay interest to the victim.

Fraudulent transfers

If the defendant tries to hinder, delay, or defraud the victim from getting restitution, then the state or victim may institute an action against the defendant under the "Uniform Fraudulent Transfers Act" to set aside the transfer.

Refusal of claim

If the victim cannot be located or refuses to receive restitution within 2 years, then the monies will be deposited in the Crime Victims Emergency Fund. However, he or she may reclaim the restitution within 5 years by applying to the GA Crime Victims Compensation Board.

Effective date

This Act is effective on July 1, 2005 .