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S.102

AN ACT RELATING TO RESTITUTION PROCEDURES

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  LEGISLATIVE INTENT

It is the intent of the general assembly that the crime victims’ restitution special fund be used to reimburse individuals who are victims of crime.  Businesses and government entities shall continue to receive restitution from the restitution unit as it is collected from offenders.

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

§ 5362.  RESTITUTION UNIT

(a)  A restitution unit is created within the center for crime victim services for purposes of assuring that crime victims receive restitution when it is ordered by the court.

(b)  The restitution unit shall administer the restitution fund established under section 5363 of this title.

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

(1)  Collect restitution from the defendant offender when it is ordered by the court on or after July 1, 2004, deposit the funds collected into the restitution fund, and make payments to victims out of the fund under section 7043 of this title.

(2)  Collect restitution from the defendant when it is ordered by the court prior to July 1, 2004 and make payments to victims.  Restitution Bring an action to enforce a restitution obligation as a civil judgment under section 7043 of this title.  The restitution unit shall enforce restitution orders issued prior to July 1, 2004 shall be enforced pursuant to the law in effect on the date the order is issued.

(3)  Bring an action to enforce a restitution order issued on or after July 1 2004 as a civil judgment under section 7043 of this title.

(4)(A)  Share and access information, consistent with Vermont and federal law, from the court, the department of corrections, the department of motor vehicles, the department of taxes, and the department of employment and training in order to carry out its collection and enforcement functions.

(B)  Provide information to the department of corrections concerning supervised offenders, including an offender’s restitution payment history and balance, address and contact information, employment information, and information concerning the restitution unit’s collection efforts.

(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.

(5)  Adopt such administrative rules as are reasonably necessary to carry out the purposes set forth in this section.

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

§ 5363.  CRIME VICTIMS’ RESTITUTION SPECIAL FUND

(a)  There is hereby established in the state treasury a fund to be known as the crime victims’ restitution special fund, to be administered by the restitution unit established by section 5362 of this title, and from which payments may be made to provide restitution to crime victims.

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

(1)(A)  All monies, except for monies given to the victims compensation fund under subdivisions 7043(h)(3) and (j)(2) of this title, collected from persons against whom restitution has been ordered on or after July 1, 2004 collected by the restitution unit pursuant to section 7043 of this title.

(2)(B)  All fees imposed by the clerk of court and designated for deposit into the fund pursuant to section 7282 of this title.

(3)(C)  All monies donated to the restitution unit or the crime victims’ restitution special fund.

(4)(D)  Such sums as may be appropriated to the fund by the general assembly.

(2)  If a person donates funds, or if a restitution recipient has declined to accept payment of restitution, the donated or declined amounts shall be retained in the crime victims’ restitution special fund.

(c)  The restitution unit shall make disbursements from the restitution special fund only to pay restitution obligations arising under section 7043 of this title, to support the restitution unit, or pursuant to subsection (d) of this section. 

(d)(1)  The restitution unit is authorized to advance up to $10,000.00 to a victim or to a deceased victim’s heir or legal representative if the victim:

(A)  was first ordered by the court to receive restitution on or after July 1, 2004;

(B)  is a natural person or the natural person’s legal representative; and

(C)  has not been reimbursed under subdivision (2) of this subsection.

(2)  The restitution unit may make advances of up to $10,000.00 under this subsection to the following persons or entities:

(A)  A victim service agency approved by the restitution unit if the agency has advanced monies which would have been payable to a victim under subdivision (1) of this subsection.

(B)  A victim who is a natural person or the natural person’s legal representative in a case where the defendant, before or after an adjudication of guilt, enters into a drug court contract requiring payment of restitution.

(3)  An advance under this subsection shall not be made to the government or to any governmental subdivision or agency.

(e)  If the restitution unit collects in excess of $10,000.00 from an offender, the amount in excess of $10,000.00 shall first be paid to that offender’s victims until the victims have received the full amount of restitution ordered.  Any excess remaining after the victims have received the full amount of restitution ordered shall be divided between the victims’ compensation fund and the crime victims’ special restitution fund in proportion to the amount which each paid.

(f)(1)  In no event shall the amount of restitution advanced to the victims of a single crime spree during a single fiscal year under this title exceed five percent of the balance of the fund at the end of the prior fiscal year.  If this section applies, an advance payment to a victim shall be reduced by the same percentage that the restitution unit reduces the total amount advanced to all victims in connection with the crime spree.  Unless otherwise ordered by the court, the restitution unit shall determine the offenders and crimes encompassed within a crime spree.

(2)  A victim whose advance payment is reduced pursuant to this subsection shall be entitled to receive additional advance payments during subsequent fiscal years until the restitution order has been satisfied or the $10,000.00 cap has been reached, whichever occurs first.

(c)(g)  All balances in the fund at the end of any fiscal year shall be carried forward and remain a part of the fund.  Disbursements from the fund shall be made by the state treasurer on warrants drawn by the commissioner of finance and management.

(d)(h)  Notwithstanding anything in this section or any other provision of law to the contrary, revenue from the surcharge fees deposited into the crime victims’ restitution special fund shall be used exclusively to support the restitution unit and restitution for crime victims, and for no other purpose.

Sec. 4.  13 V.S.A. § 5364 is added to read:

§ 5364.  SUBROGATION LIEN

The state shall be subrogated to the rights of the victim, assignee, heir, or dependent to whom restitution payments are made to the extent of the payments made.  The state shall have a lien therefor and may commence an action or intervene in any action to protect and enforce such lien.  Such subrogation rights shall be against any person liable for the pecuniary loss.

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

§ 7043.  RESTITUTION

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(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 defendant offender.

(2)  The defendant’s offender’s current ability to pay restitution, based on all financial information which the defendant has filed with the court 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 defendant offender is unable to pay the restitution judgment order at the time of sentencing, the court shall establish a restitution payment schedule for the defendant offender based upon the defendant’s 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 defendant’s offender’s name, address and social security number;

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

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

(B)  A defendant’s social security An offender’s Social Security number shall only be used by the restitution unit for the purpose of facilitating the collection of restitution, and shall not otherwise be released.

(e)(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.  A defendant An offender may not be charged with a violation of probation, furlough, or parole for nonpayment of restitution.

(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 defendant offender.

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

(g)  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)  The court shall transmit a copy of a restitution order to the restitution unit, which shall make payment to the victim from the restitution fund established under in accordance with section 5363 of this title.  If the victim has died, payment shall be made to the victim’s estate.

(2)  A payment out of the restitution fund shall not exceed $10.000.00, except as provided in subdivision (j)(2) of this section.

(3)  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)  The restitution unit may bring an action to enforce a restitution order against a defendant 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)(1)  All restitution payments by a defendant 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.

(2)  If the restitution unit collects in excess of $10,000.00 from the defendant, the amount in excess of $10,000.00 shall be paid to the victim until the victim has received the full amount of the restitution order.  Any excess remaining after the victim has received the full amount of the restitution order shall be divided between the victims compensation fund and the restitution unit in proportion to the amount which each paid to the victim.

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

(l)  If the defendant 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 shall set the matter for hearing and shall provide notice to the restitution unit, the victim, and the defendant offender.  If the court determines the defendant offender has failed to comply with the restitution order, the court may take any action the court deems necessary to ensure the defendant 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 defendant offender;

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

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

(m)(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 in the restitution payment plan 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 winnings restitution owed and pay it to the restitution unit.  The restitution unit shall offset the winnings by the amount of restitution owed and the 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.

(B)  The restitution unit shall inform the lottery commission of persons with outstanding restitution orders upon request.  Each person subject to such an order shall be identified by name, address, and Social Security number.

(C)  If a lottery winner has an outstanding restitution order and an outstanding child support order, the lottery winnings shall be offset first pursuant to section 792 of Title 15 by the amount of child support owed, and second pursuant to this subsection by the amount of restitution owed.  The remainder of the winnings, if any, shall be sent to the winner.

(4)  Monies Unless otherwise provided, monies paid under this subsection shall be paid directly to the restitution unit, which shall notify the victim that the monies have been received.

(n)(1)  The sentencing court at the time of sentencing, or the superior or small claims court in a subsequent proceeding, may issue a wage withholding order directing current and subsequent employers of the defendant offender to pay a portion of the defendant’s offender’s wages directly to the restitution unit until the defendant’s offender’s restitution obligation is satisfied.  The wages of the defendant offender shall be exempt as follows: 

* * *

(2)  The court shall transmit all wage withholding orders issued under this section to the restitution unit, which shall forward the orders to the defendant’s offender’s employers.  Upon receipt of a wage withholding order from the restitution unit, an employer shall:

(A)  withhold from the wages paid to the defendant offender the amount specified in the order for each wage period;

(B)  forward the withheld wages to the restitution unit within seven working days after wages are withheld, specifying the date the wages were withheld;

(C)  retain a record of all withheld wages;

(D)  cease withholding wages upon notice from the restitution unit; and

(E)  notify the restitution unit within 10 days of the date the defendant’s offender’s employment is terminated.

(3)  In addition to the amounts withheld pursuant to this section, the employer may retain not more than $5.00 per month from the defendant’s offender’s wages as compensation for administrative costs incurred.

* * *

(o)  A restitution obligation shall be nondischargeable, An obligation to pay restitution is part of a criminal sentence and is nondischargeable in the United States Bankruptcy Court to the maximum extent provided under 11 U.S.C. § 523, in the United States Bankruptcy Court §§ 523 and 1328.

(p)  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, and the restitution unit shall be entitled to the remedies of creditors provided under section 2291 of Title 9.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us