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Troy MI License Restoration Blog

Monday, February 16, 2015

SO YOU THINK YOUR CRIMINAL CASE IS RESOLVED: BEWARE OF RESTITUTION!!!

 Many criminal cases can be resolved without worrying about restitution because economic damage to the victim is not applicable. However, where it is an issue the client must be advised of the exposure and a plan of action needs to be developed.

Arguably keeping the client out of jail/prison is the foremost concern for both the attorney and client. And, for the most part, in the majority of criminal cases restitution is not an issue. Many criminal cases are what the industry calls “victimless” crimes. For example, possession of illegal drugs, or, use of the same would be examples of victimless crimes. In other words there would be no victim that would be standing there with his hand out waiting to be compensated for damages as a result of criminal activity waged against him.

A victim of MDOP (malicious destruction of property) would be entitled to money damages as a result of whatever property of his that was destroyed, etc..

So often the focus of resolving a criminal for the client revolves around the issue of jail/prison time and what can be done to minimize or eliminate it. Restitution unfortunately is often overlooked and the client in many instances is unpleasantly shocked when he realizes he is on the hook for perhaps thousands of dollars in damages. The goal of the court is not to enrich the victim beyond his actual damages but rather to put him back in the position he enjoyed before the economic loss.

Often times this can get tricky. Some less scrupulous “victims” try to inflate their losses in order to “get paid” beyond that which they are entitled. At the very least the attorney has the obligation to appraise the client of the likelihood of the issue of restitution so that he may be prepared and anticipate the added costs involved in challenging any inappropriate demands of the victim.

When restitution is inflated the attorney must object to those items not related to the damages stemming from the incident. These “inappropriate” items, if any, will appear in the PSI (pre-sentence investigation report). This issue makes it clear why the attorney has the right, pursuant to statute, to have for review, the PSI two days prior to the sentencing. It is disadvantageous to the client to have to review the PSI for the first time directly before sentencing.

PSI, the attorney must request a restitution hearing which then will be scheduled for another day. Depending on the amount of money at issue, the amount of preparation will vary from case to case; however, careful preparation must nonetheless be done. Nothing can be taken for granted due to the fact that the standard of proof for the judge to consider regarding restitution hearings is a “preponderance of the evidence”. This standard is the easiest of hurdles for the victim to navigate. It requires the judge only to find that the evidence tips the scale in the slightest of degrees in favor of the victim.

Do not leave restitution out of the preliminary discussions when evaluating a criminal case when damages to the victim are a reality. Call the Law Offices of Martin Lievois and keep your money to which the victim is not entitled. In Flint at 810-419-1566,or in Troy at 248-250-4550.

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| Phone: 810-232-3223
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| Phone: 248-498-2525

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