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S.222

AN ACT RELATING TO IMPROVING RESTITUTION PROCEDURES

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

Sec. 1.  4 V.S.A. § 437 is amended to read:

§ 437.  CIVIL JURISDICTION OF DISTRICT COURT

The district court shall have jurisdiction of the following actions:

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(10)  Restitution modification proceedings pursuant to 13 V.S.A. § 7043(h).

Sec. 2.  13 V.S.A. § 7041 is amended to read:

§ 7041.  DEFERRED SENTENCE

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(b)  Upon violation of the terms of probation or of the deferred sentence agreement, the court shall impose sentence.  Upon fulfillment of the terms of probation and of the deferred sentence agreement, the court shall strike the adjudication of guilt and discharge the respondent, except that a person shall not be discharged from probation imposed under this section until restitution has been paid in full, absent a finding of good cause by the court.  Upon discharge the record of the criminal proceedings shall be expunged as if an application pursuant to section 5538 of Title 33 had been granted.

(c)(1)  A deferred sentence imposed under subsection (a) of this section may include a restitution order issued pursuant to section 7043 of this title.  If a court determines that a person subject to a deferred sentence has failed to comply with a restitution order issued under section 7043 of this title, the court may impose sentence upon finding the defendant has the present ability to pay.

(2)  No sentence shall be imposed or continued pursuant to this subsection after compliance with the restitution order.  This subsection shall not apply to the violation of any condition of probation other than a failure to comply with a restitution order.

Sec. 3.  13 V.S.A. § 7043 is amended to read:

§ 7043.  Restitution

(a)  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 or has incurred medical expenses.  Whether or not any other sentence or disposition is imposed, a term of probation may be ordered, with restitution as the only condition.

(b)  When ordered, restitution may include:

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

(2)  cash, credit card or installment payments, including interest at the statutory rate for civil judgments, or voluntarily assigned wages or assets, paid to the victim or to the victims’ compensation fund established under chapter 167 of this title to compensate for damages to the victim’s property or person,; or

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

(c)  In awarding restitution, the court shall consider the ability of the defendant to pay.

(d)  Restitution, if imposed, shall be due at the time of sentencing, unless the court finds on the record that there is good cause for an extension, and made to the victim, or if the victim has died, to the victim’s estate.  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 victims’ compensation fund.

(e)  Restitution orders If not paid at the time of sentencing, restitution may be enforced as conditions 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, or otherwise in the manner of civil judgments.  Unless otherwise specifically ordered by the court, an order for restitution as a condition of preapproved furlough, probation or supervised community sentence shall remain in effect if the defendant violates preapproved furlough, probation or supervised community sentence and is sentenced to imprisonment. 

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

(g)  No restitution ordered under this section precludes a person granted such relief from pursuing an independent civil action.

(h)  The court may modify a restitution order if, upon motion by the state’s attorney, the center for crime victims services, the victim, or the defendant, the court finds that a modification is warranted by a substantial change in circumstances.

(i)(1)  If the defendant fails to pay restitution as ordered by the court, the victim, the center for crime victims services, the department of corrections, or the state’s attorney may notify the court of the defendant’s default.  The court shall set the matter for hearing, and shall provide notice thereof to the victim, the department of corrections, the state, and the defendant.  If the court determines the defendant has failed to comply with the restitution order, the court may take any action the court deems necessary to ensure the defendant will make the required restitution payments, including:

(A)  amending or modifying the court’s restitution order;

(B)  requiring the disclosure of assets and income by the defendant, in which case the defendant may voluntarily assign wages or assets to satisfy the compliance requirement;

(C)  upon finding the defendant has the ability to pay, revoking the defendant’s probation, and ordering the defendant to serve all or part of the underlying sentence.

(2)  Any monies owed by the state to an offender who is under a restitution order, including, but not limited to, lottery winnings and tax refunds, shall be assigned to discharge the restitution order to the full extent of the unpaid total financial losses, regardless of the payment schedule in the restitution payment plan.  In the case of a tax refund, the monies shall be paid pursuant to subchapter 12 of chapter 151 of Title 32.  Monies paid under this subsection shall be paid directly to the department of corrections, without any reductions for collection or supervision fees.

(j)  The department of corrections shall, in conjunction with the center for crime victims services, establish guidelines for assessing the defendant’s ability to pay restitution.  The guidelines shall describe pertinent financial information to be collected, procedures for the verification of information, staff responsible for collecting the information, methods of relaying that information to the court, and a recommended payment schedule.

(k)  A standard condition of probation, parole, supervised community sentence, preapproved furlough or other sentence shall be a requirement that the defendant comply with all requests from the department of corrections or the center for crime victims services to furnish information, including financial information, which will enable the department to collect restitution from the defendant.

(l)  The court shall not discharge a defendant from probation until restitution has been paid in full, absent a finding of good cause by the court.

(m)  A restitution obligation shall be nondischargeable, to the maximum extent provided under 11 U.S.C. § 523, in the United States Bankruptcy Court.

(n)  A transfer of property made with the intent to avoid a restitution obligation shall be deemed a fraudulent conveyance for purposes of chapter 57 of Title 9.

Sec. 4.  13 V.S.A. § 7226 is added to read:

§ 7226.  FINES NOT DISCHARGEABLE IN BANKRUPTCY

A criminal fine owed to the state shall be nondischargeable, to the maximum extent provided under 11 U.S.C. § 523, in the United States Bankruptcy Court.

Sec. 5.  28 V.S.A. § 252(b)(6) is amended to read:

§ 252.  CONDITIONS OF PROBATION

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(b)  When imposing a sentence of probation, the court may, as a condition of probation, require that the offender:

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(6)  Make restitution or reparation to the victim of his or her conduct, or to the victims’ compensation fund to the extent it has made payment to or on behalf of the victim in accordance with chapter 167 of Title 13, for the damage or injury which was sustained.  When restitution or reparation is a condition of the sentence, the court, in accordance with section 7043 of Title 13, shall fix the amount thereof, which shall not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance;

Sec. 6.  28 V.S.A. § 255 is amended to read:

§ 255.  DISCHARGE

(a)  Upon the termination of the period of probation or the earlier discharge of the probationer in accordance with section 251 of this title, the probationer shall, unless the court has ordered otherwise under subsection (b) of this section or under subsection 7043(l) of Title 13, be relieved of any obligations imposed by the order of the court and shall have satisfied his the sentence for the crime.

(b)  When restitution or reparation to the victim has been ordered under subdivision 252(b)(6) of this title, the period of probation shall not terminate until the offender has complied with the order, absent a finding of good cause by the court.

Sec. 7.  28 V.S.A. § 506 is amended to read:

§ 506.  TERMINATION AND DISCHARGE

(a)  If warranted by the conduct of the parolee and the ends of justice the board may terminate the period of parole supervision and discharge the parolee from parole supervision.  Supervision of a parolee serving a life sentence may be terminated only after fifteen 15 years measured from the date of first confinement.

(b)  The board shall discharge the parolee at the expiration of the maximum term of his or her sentence.

(c)  When restitution or reparation to the victim has been ordered under subdivision 252(b)(6) of this title, the board shall not discharge the parolee from supervision until the offender has complied with the order, unless the sentence has been served in full.

Sec. 8.  32 V.S.A. § 3102 is amended to read:

§ 3102.  CONFIDENTIALITY OF TAX RECORDS

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(e)  The commissioner may, in his or her discretion and subject to such conditions and requirements as he or she may provide, including any confidentiality requirements of the Internal Revenue Service, disclose a return or return information:

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(11)  to the joint fiscal office or its agent, provided that the disclosure relates to a successful business applicant under section 5930a of this title and the tax incentive it has claimed and is reasonably necessary for the joint fiscal office or its agent to perform the duties authorized by the joint fiscal committee or a standing committee of the general assembly under subsection 5930a(h); to the auditor of accounts for the performance of duties under section 163 of this title; and to the Vermont economic progress council, provided that the disclosure relates to a successful business applicant under section 5930a of this title and the tax incentive it has claimed and is reasonably necessary for the council to perform its duties under section 5930a;

(12)  to the commissioner of corrections or the center for crime victims services for the purpose of determining or verifying a defendant’s assets and income pursuant to section 7043 of Title 13.

Sec. 9.  REPORT

The department of corrections, the defender general, the department of state’s attorneys, the court administrator and the center for crime victims services shall report to the house and senate committees on judiciary on January 1, 2003 on the viability of establishing and maintaining a restitution system funded by a surcharge imposed on all criminal and traffic violations.  The report shall include:

(1)  a comprehensive description of the manner in which a surcharge‑funded restitution system would function, including details about procedures, methods of collection, the applicability and amount of the surcharge, and a thorough description of the system’s structure identifying the state entities responsible for oversight and management;

(2)  an examination of other possible methods of funding and organizing the payment of restitution to crime victims, including study of the restitution systems in place in California and other states, to determine if any of these alternatives would be effective and appropriate in Vermont; 

(3)  an explanation and analysis of the policy justifications for both the current system, which imposes restitution obligations entirely on the offender who caused the loss, and the proposed alternative, which spreads restitution obligations among all criminal offenders, including a comparison of the advantages and disadvantages of each approach;

(4)  a complete assessment of the financial impacts of both the current system and the proposed alternative, including current and projected data on each system’s:

(A)  operating costs, overhead and personnel requirements; and

(B)  revenue, including statistics for each system detailing the number and percentage of defendants who comply with restitution orders, the amount of restitution ordered and the amount and percent collected, and the projected net loss or gain in restitution collections of adopting a surcharge‑funded system. 

(5)  a comparison of the current and projected data developed under this section with national data on restitution collection and debt collection generally.