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ACT OF THE GENERAL ASSEMBLY 2007-2008

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NO. 40.  AN ACT RELATING TO RESTITUTION and notice to prosecution of confidential records disclosure.

(H.334)

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. § 5312 is amended to read:

§ 5312.  VICTIM’S INTEREST IN SPEEDY PROSECUTION

(a)  The prosecutor’s office, if practicable, shall make every effort to inform a victim of a listed crime of any pending motion that may substantially delay the prosecution any deposition, change of plea, trial, sentencing hearing, or restitution hearing.  The prosecutor shall inform the court of how the victim was notified and the victim’s position on the motion, if any.  In the event the victim was not notified, the prosecutor shall inform the court why notification did not take place.

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Sec. 3.  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 reduce the amount collected or to be collected from the offender or disbursed to the victim from the crime victims’ restitution special fund accordingly.  The restitution unit shall submit to the court a proposed revised restitution order stipulated to by the victim and the unit, with copies provided to the victim and the offender.  No hearing shall be required, and the court shall amend the judgment order to reflect the amount stipulated to by the victim and the restitution unit.

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(6)  Report offenders’ payment histories to credit reporting agencies, provided that the unit shall not report information regarding offenders who are incarcerated.  The unit shall not make a report under this subdivision until after it has notified the offender of the proposed report by first class mail or other like means to give actual notice, and provided the offender a period not to exceed 20 days to contest the accuracy of the information with the unit.  The unit shall immediately notify each credit bureau organization to which information has been furnished of any increases or decreases in the amount of restitution owed by the offender.       


Sec. 4.  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 within the time limits provided by subsection 1247(d) of Title 27, and the treasurer shall report it as unclaimed property.  Notwithstanding any other provision of law, in no event shall the advance payments from the restitution special fund to which the victim is entitled be subject to ultimate deposit in the general or education fund. 

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Sec. 5.  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, 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 unit” means the state of Vermont restitution unit.

(6)  “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.

(b)  Upon receipt of a duly authorized 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.

(5)  Whether the offender is the sole owner of the 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 to each other by the financial institution and the restitution unit pursuant to this section shall be confidential and shall be used only for the purpose of collecting unpaid restitution.

Sec. 6.  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, uninsured lost wages, and uninsured medical expenses.

(b)(1)  When ordered, restitution may include:

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

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

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

(2)  In the event of a victim’s crime-related death, the court may, at the request of the restitution unit, direct the unit to pay up to $10,000.00 from the restitution fund to the victim’s estate to cover future uninsured material losses caused by the death.  

(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.  Notwithstanding chapter 113 of Title 12 or any other provision of law, interest shall not accrue on a restitution judgment.

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

(i)  include the offender’s name, address, and social security 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)(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)(1)  When restitution is requested but not ordered, the court shall set forth on the record its reasons for not ordering restitution.

(2)(A)  If restitution was not requested at the time of sentencing, or if expenses arose after the entry of a restitution order, the state may file a motion with the sentencing court to reopen the restitution case in order to consider a request for restitution payable from the restitution fund.  Restitution ordered under this subdivision shall not be payable by the offender. 

(B)  A motion under this subdivision shall be filed within one year after the imposition of sentence or the entry of the restitution order.

(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 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)  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, and for an action to renew a restitution judgment.

(j)  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)  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)  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.  After an enforcement action is filed, any further proceedings related to the action shall be heard in the court where it was filed.  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)  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.

(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)  Unless otherwise provided, monies paid under this subsection shall be paid directly to the restitution unit.

(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 All restitution orders made or modified on or after January 1, 2008 shall include an order for wage withholding unless the court in its discretion finds good cause not to order wage withholding or the parties have entered into an alternative arrangement by written agreement which is affirmatively stated in the order.  The wage withholding order shall direct current and subsequent employers of the offender to pay a portion of the offender’s wages directly to the restitution unit until the offender’s restitution obligation is satisfied.  The wages of the offender shall be exempt as follows:

(A)  to the extent provided under Section 303(b) of the Consumer Credit Protection Act (15 U.S.C. § 1673(b)); or

(B)  if the court finds the weekly expenses reasonably incurred by the debtor for his or her maintenance and that of dependents exceed the amounts exempted by subdivision (1)(A) of this subsection, such greater amount of earnings as the court shall order.

(2)  The court shall transmit all wage withholding orders issued under this section to the restitution unit, which shall forward the orders to the 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 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 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 offender’s wages as compensation for administrative costs incurred.

(4)  Any employer who fails to withhold wages pursuant to a wage withholding order within 10 working days of receiving actual notice or upon the next payment of wages to the employee, whichever is later, shall be liable to the restitution unit in the amount of the wages required to be withheld.

(5)  An employer who makes an error in the amount of wages withheld shall not be held liable if the error was made in good faith.

(6)  For purposes of this subsection, “wages” means any compensation paid or payable for personal services, whether designated as wages, salary, commission, bonuses, or otherwise, and shall include periodic payments under pension or retirement programs and workers’ compensation or insurance policies of any type.

(o)  An obligation to pay restitution is part of a criminal sentence and is:

(1)  nondischargeable in the United States Bankruptcy Court to the maximum extent provided under 11 U.S.C. §§ 523 and 1328; and

(2)  not subject to any statute of limitations.

(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.

Sec. 7.  23 V.S.A. § 1213c(j) is amended to read:

(j)  Order of forfeiture.  If the court orders the motor vehicle forfeited, it shall be delivered into the custody of the commissioner of buildings and general services, who shall dispose of the motor vehicle pursuant to section 1556 of Title 29.  The proceeds from the sale of the vehicle shall first be used to offset any costs of selling the vehicle, and then, after any liens on the vehicle have been paid in full, applied to any unpaid restitution owed by the defendant in connection with the charge that resulted in forfeiture.  Any balance remaining, after any liens on the vehicle have been paid in full, shall be deposited into the general fund.


Sec. 8.  27 V.S.A. § 1249 is amended to read:

§ 1249.  NOTICE AND PUBLICATION OF LISTS OF UNCLAIMED

               PROPERTY

(a)  The treasurer shall notify apparent owners of unclaimed property under this chapter in the manner and method set out in subsection (b) of this section. In deciding whether to use an additional method specified in subdivision (b)(2) of this section, and which of those methods to use, the treasurer shall employ the method he or she deems to be the most cost-effective method available within its appropriations, while also giving consideration to the effectiveness of the method.

(b)  The treasurer:

(1)  shall notify all apparent owners of unclaimed property in accordance with this section by means of posting on the treasurer’s website on the internet;

(2)  may use any of the following to provide additional notice to the apparent owners:

(A)  publication in a newspaper of general circulation:

(i)  in the area of the state in which the last known address of a person to be named in the notice is located;

(ii)  in the area in which the holder has its principal place of business in the state; or

(iii)  in the area the treasurer deems to provide the best opportunity to reach the apparent owner;

(B)  individual contact by regular or electronic mail, or by telephone, if the treasurer has current contact information on file;

(C)  any other manner and method that the treasurer considers effective for providing notice and publication.

(c)  In the notice and publication under subsection (b) of this section, the treasurer shall provide the names of the apparent owners of the property and information regarding recovery of the unclaimed property.

(d)  The treasurer is not required to publish in the notice an item of less than $100.00 in value.

(e)  The treasurer may establish a program to assist other state agencies holding property not presumed to be abandoned to locate the owners of the property.  Under this program, the treasurer may publish the owners’ names on the treasurer’s website and in any other manner the treasurer deems appropriate without taking possession of the property.  Owners contacting the treasurer’s office under this program would be referred to the state agency possessing the property.  Agencies participating in the program will remain obligated to report and remit the property to the treasurer’s office after it is presumed abandoned.

Sec. 9.  13 V.S.A. § 7282 is amended to read:

§ 7282.  ASSESSMENT

(a)  In addition to any penalty or fine imposed by the court or judicial bureau for a criminal offense or any civil penalty imposed for a traffic violation, including any violation of a fish and wildlife statute or regulation, violation of a motor vehicle statute, or violation of any local ordinance relating to the operation of a motor vehicle, except violations relating to seat belts and child restraints and ordinances relating to parking violations, the clerk of the court or judicial bureau shall levy an additional fee of:

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(9)  For any offense or violation committed after June 30, 2003, an amount equal to 15 percent of the fine imposed for the offense, rounded upward to the nearest whole dollar, which shall be deposited into the crime victims’ restitution special fund established by section 5363 of this title.

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Sec. 10.  REPEAL OF SUNSET FOR RESTITUTION UNIT AND CRIME 

               VICTIMS’ RESTITUTION SPECIAL FUND

Sec. 16 of No. 57 of the Acts of 2003 (sunset for restitution unit and crime victims’ restitution special fund) is repealed.

Sec. 11.  13 V.S.A. § 6607 is added to read:

§ 6607.  DISCLOSURE OF CONFIDENTIAL RECORDS; NOTICE TO

               PROSECUTION

When a defendant seeks access to a victim’s school records, or to any other records of a victim which are by law confidential, the defendant shall provide written notice to the prosecutor that the records have been requested prior to the service of any subpoena requesting the records.

Sec. 12.  REPORT

The joint fiscal office, in consultation with the Vermont center for crime victims services, shall report to the house and senate committees on judiciary on or before December 15, 2007 regarding the present and projected financial health and status of the crime victims’ restitution special fund established pursuant to section 5363 of Title 13.  The report shall include:

(1)  a projection of the fund’s financial balances in 2012 and 2017, taking into account all of the fund’s revenues and expenditures, including surcharges on traffic and criminal fines; and

(2)  an analysis of the financial cost of a policy change proposal to allow payment from the fund of restitution which has been ordered by a court during the years 1988–2004 but not collected.   

Sec. 13.  EFFECTIVE DATE

Sec. 9 of this act shall take effect on July 1, 2012.

Approved:  May 22, 2007



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us