GA Code § 17-14-10 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 14 - Restitution and Distribution of Profits to Victims of Crimes|Article 1 - Restitution|§ 17-14-10. Factors to Be Considered by Ordering Authority in Determining Nature and Amount of Restitution

  In determining the nature and amount of restitution, the ordering authority shall consider:   The financial resources and other assets of the offender or person ordered to pay restitution including whether any of the assets are jointly controlled;   The earnings and other income of the offender or person ordered to pay restitution;   Any financial obligations of the offender or person ordered to pay restitution, including obligations to dependents;   The amount of damages;   The goal of restitution to the victim and the goal of rehabilitation of the offender;   Any restitution previously made;   The period of time during which the restitution order will be in effect; and   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.    (Code 1933, § 27-3010, enacted by Ga. L. 1980, p. 1382, § 1; Ga. L. 2005, p. 88, § 5/HB 172.)   Editor's notes.   - Ga. L. 2005, p. 88, § 1/HB 172, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Crime Victims Restitution Act of 2005.'"   JUDICIAL DECISIONS   Ordering authority to make record.    - O.C.G.A. § 17-14-10 requires the ordering authority to make a record regarding consideration of the enumerated factors. Woods v. State, 205 Ga. App. 500, 422 S.E.2d 670 (1992); Jones v. State, 224 Ga. App. 340, 480 S.E.2d 618 (1997); Cardwell v. State, 225 Ga. App. 337, 484 S.E.2d 38 (1997).    Defendant's case was remanded to the trial court for a hearing since the transcript did not disclose what, if any, consideration was made of the factors mandated by O.C.G.A. § 17-14-10. Williams v. State, 180 Ga. App. 854, 350 S.E.2d 837 (1986).    Restitution is not synonymous with civil damages. Morrison v. State, 181 Ga. App. 440, 352 S.E.2d 622 (1987).    Order that defendant pay defendant's court-appointed attorney as a condition of probation was not governed by O.C.G.A. § 17-14-10, but by O.C.G.A. § 17-12-10, providing for payment or reimbursement for legal assistance and, thus, no hearing was required. Miller v. State, 221 Ga. App. 718, 472 S.E.2d 697 (1996).   Hearing.    - Former Code 1933, §§ 27-3008 - 27-3010 (see O.C.G.A. §§ 17-14-8 -17-14-10) contemplated a hearing and specific written findings by the court in determining whether the court will order restitution and the amount thereof; thus, the statutory provisions on restitution do not deny defendants due process rights to a hearing on the damage issue. Cannon v. State, 246 Ga. 754, 272 S.E.2d 709 (1980).    In the absence of a post-trial presentence hearing wherein the factors enumerated in O.C.G.A. § 17-14-10 are considered by the trial court, a sentence imposing restitution cannot stand. Patterson v. State, 161 Ga. App. 85, 289 S.E.2d 270 (1982); Brown v. State, 214 Ga. App. 733, 449 S.E.2d 136 (1994).    Trial court erred in ordering the defendant to pay a specified sum as restitution without holding a hearing and making the specific findings required by statutory law; thus, that portion of the defendant's sentence based on defendant's conviction for theft of lost or mislaid property had to be reversed and remanded to the trial court so that the court could hold an appropriate hearing and make the required findings. Shannon v. State, 258 Ga. App. 689, 574 S.E.2d 889 (2002).   Joint and several liability.    - Defendant's sole enumeration of error was that the trial court erred in the court's order by holding each defendant jointly and severally liable for the entire restitutionary amount; however, the defendant failed to show that the trial court's order of joint and several liability on the restitutionary amount was unreasonable or that the defendant had been harmed thereby. Morrison v. State, 181 Ga. App. 440, 352 S.E.2d 622 (1987).    Co-defendant did not show that the trial court abused the court's discretion by ordering the defendant jointly and severally liable for restitution in the case because the amount of restitution ordered was within the limits allowed by law as it did not exceed the victim's damages, and in setting that amount, the trial court specifically considered the factors set forth in O.C.G.A. § 17-14-10. Hettrick v. State, 334 Ga. App. 115, 778 S.E.2d 369 (2015).   Standard of proof.    - Sufficiency of evidence to support an order of restitution in a criminal case should be measured by the civil standard of preponderance of the evidence. Lawrenz v. State, 194 Ga. App. 724, 391 S.E.2d 703 (1990).   Necessity of complying with procedural requirements.    - That portion of defendant's sentence which imposed restitution as a condition of probation was reversed and remanded to the trial court with direction that a hearing on the issue of restitution be held at which O.C.G.A. § 17-14-9, regarding the amount, and the factors in O.C.G.A. § 17-14-10 were to be considered, and the trial court was further directed that the written finding required by O.C.G.A. § 17-14-8 be made. Murphy v. State, 182 Ga. App. 791, 357 S.E.2d 147 (1987).    Since the trial court did not hold a restitution hearing and the only mention of restitution at the sentencing hearing was the restitution order itself, the case was remanded for a hearing and specific written findings. Fonseca v. State, 212 Ga. App. 463, 441 S.E.2d 912 (1994); Earl v. State, 214 Ga. App. 891, 449 S.E.2d 361 (1994); Thompson v. State, 214 Ga. App. 889, 449 S.E.2d 364 (1994).    Since the trial court failed to make written findings based on the factors in O.C.G.A. § 17-14-10, and there was no showing in the record that the court considered such factors, the restitution award was invalid, and a rehearing was required. Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326 (1998).    In an adjudication proceeding, because: (1) the juvenile court erred in failing to include the statutorily-required findings of fact pursuant to O.C.G.A. § 17-14-10 in support of the restitution award; (2) the vast majority of the victim's testimony regarding damages was limited to the original price or the replacement costs of the items damaged or stolen; and (3) some of the victim's testimony regarding repair quotes received constituted inadmissible hearsay, the restitution award was vacated and the case was remanded for a new hearing. In the Interest of R.V., 283 Ga. App. 355, 641 S.E.2d 591 (2007), overruled on other grounds, McCart v. State, 289 Ga. App. 830, 658 S.E.2d 465 (2008).   Evaluation of defendant's ability to pay restitution.    - Following the defendant's guilty plea to O.C.G.A. § 16-14-4(a) (RICO), an order of $725,000 restitution pursuant to O.C.G.A. § 17-14-3(a) was supported by evidence that the defendant had the capacity for gainful employment, notwithstanding the defendant's claim that the defendant was disabled; that the defendant had possessed hundreds of thousands of dollars of the victims' money; and that the defendant had a venture in which the defendant claimed $4.8 million. Nelson v. State, 329 Ga. App. 300, 764 S.E.2d 883 (2014).   Specific findings required.    - Restitution order that required a county probate judge who pled guilty to misfeasance in office to repay the county the sum of $54,000 was deficient in that the order did not contain the specific findings required by O.C.G.A. § 17-14-10; the trial court was directed to enter a new restitution order based on the required findings. Beall v. State, 252 Ga. App. 138, 555 S.E.2d 788 (2001), overruled on other grounds, 324 Ga. App. 289, 750 S.E.2d 375 (2013).    While a trial court noted in the court's restitution order that evidence had been presented at the restitution hearing concerning the defendant's health problems and ability to pay and while the trial court specifically stated that the court had considered the factors set forth in O.C.G.A. § 17-14-10, the case was remanded because the trial court failed to set forth the necessary written factual findings. McMahon v. State, 273 Ga. App. 574, 615 S.E.2d 625 (2005).    Despite the fact that O.C.G.A. § 15-11-70 allowed for a juvenile probation order to be extended if, among other things, a hearing was held prior to the expiration of the order upon motion of a party or on the court's own motion, the juvenile court erred in extending a juvenile's probation, imposing the condition that restitution be paid, without making the requisite findings set forth in O.C.G.A. § 17-14-10, such as the juvenile's financial condition. In the Interest of C.S., 280 Ga. App. 781, 635 S.E.2d 176 (2006), overruled on other grounds, McCart v. State, 289 Ga. App. 830, 658 S.E.2d 465 (2008).    Record did not disclose what the trial court found as fact or that the court considered the O.C.G.A. § 17-14-10 factors in imposing restitution upon the defendant; thus, a remand was required for a hearing on the matter. Newton v. State, 281 Ga. App. 549, 636 S.E.2d 728 (2006), overruled on other grounds, McCart v. State, 289 Ga. App. 830, 658 S.E.2d 465 (2008).   Probationer's ability to pay.    - Because a probationer received a restitution hearing in which the trial court considered all the required factors in determining the probationer's ability to pay, and the court made findings based on the evidence presented, no error resulted in entering the restitution order despite the fact that the probationer only made $6,000 per year. Tindol v. State, 284 Ga. App. 45, 643 S.E.2d 329 (2007).    Trial court's order on remand to include the required factual findings supporting the court's restitution judgment, after considering the defendant's financial condition and probable future earning capacity, was upheld on appeal as the order: (1) did not include any amount arising out of the counts which the defendant was acquitted; (2) contained a finding that the award could exceed the total amount of money the defendant took wrongfully because the court was allowed to award all damages which a victim could recover against an offender in a civil action, pursuant to O.C.G.A. § 17-14-2; (3) considered the defendant's financial resources, assets, income, and financial obligations as required under O.C.G.A. § 17-14-10; and (4) considered that the defendant's criminal actions caused the victims the loss that the trial court awarded as restitution. McMahon v. State, 284 Ga. App. 192, 643 S.E.2d 236 (2007).   Written findings of fact required.    - As the trial court failed to include written findings of fact pertaining to the various factors set forth in O.C.G.A. § 17-14-10 in the court's order following a restitution hearing, the court's restitution order was deficient. Nobles v. State, 253 Ga. App. 814, 560 S.E.2d 724 (2002).    Restitution order was vacated on appeal because the trial court failed to provide written findings as to each factor enumerated in O.C.G.A. § 17-14-10; whether the defendant was entitled to a new restitution hearing, however, was an issue for the trial court to determine on remand. Steele v. State, 270 Ga. App. 488, 606 S.E.2d 664 (2004).   Written findings no longer required.    - Under O.C.G.A. § 17-14-1 et seq., written findings are no longer required when ordering an offender to make restitution; as a result, Garrett v. State, 175 Ga. App. 400, 333 S.E.2d 432 (1985), and its progeny, are disapproved to extent they were authority for any cases involving restitution orders issued on or after July 1, 2005, the effective date of the Crime Victims Restitution Act of 2005, O.C.G.A. § 17-14-1 et seq. McCart v. State, 289 Ga. App. 830, 658 S.E.2d 465 (2008).    Georgia law no longer requires written findings on restitution. Ezebuiro v. State, 308 Ga. App. 282, 707 S.E.2d 182 (2011).    Trial court's failure to enter written findings with respect to a restitution award was not reversible error; based on an amendment to the restitution statutes in 2005, a trial court is no longer required to make written findings of fact concerning the factors to be considered in determining the restitution amount as set forth in O.C.G.A. § 17-14-10. Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714 (2012).   Specific findings of fact and maximum amount allowed.    - Order for restitution failed to make specific findings of fact and amount awarded exceeded victim's damages. Revis v. State, 223 Ga. App. 470, 477 S.E.2d 880 (1996).    Defendant's silence when restitution order was given did not render the failure to make findings harmless or cut off the right to appeal such error. Fonseca v. State, 212 Ga. App. 463, 441 S.E.2d 912 (1994).   Failure of defendant to offer evidence regarding ability to pay.    - Since the claimant failed to provide any evidence of the claimant's present financial condition or future earning capacity at a restitution hearing, the court had no affirmative duty to discover such evidence in considering the claimant's ability to pay; since the claimant had the opportunity to present evidence, yet still chose not to do so, the claimant's silence was deemed a waiver. Cheeks v. State, 218 Ga. App. 212, 460 S.E.2d 860 (1995).    Defendant, who pled guilty to theft by taking under O.C.G.A. § 16-8-2, could not argue that the trial court failed to consider the factors in O.C.G.A. § 17-14-10 in making a restitution order as the defendant did not meet the burden of proof under O.C.G.A. § 17-14-7 in establishing the defendant's expenses as the defendant only told the court that the defendant had to make monthly payments; the defendant made no response when asked if the defendant could make house payments and the like if half the defendant's monthly income was applied to the restitution order. Wimpey v. State, 297 Ga. App. 182, 676 S.E.2d 831 (2009).   Factors considered.    - Amount of restitution ($63,000) assessed against a defendant was appropriate under O.C.G.A. § 17-14-9 because the master client list of the defendant's employer was offered to the defendant for $100,000, evidence was presented that the list was worth between $200,000 and $225,000, the list ultimately sold for $17,500, and the employer lost commissions in excess of $21,000; the trial court also properly considered the defendant's ability to pay and the factors contained in O.C.G.A. § 17-14-10. DuCom v. State, 288 Ga. App. 555, 654 S.E.2d 670 (2007), cert. denied, No. S08C0598, 2008 Ga. LEXIS 383 (Ga. 2008).    There was no error with respect to a trial court's order of restitution to a defendant upon the defendant's conviction as the trial court properly considered the defendant's current financial condition and future earning capacity, and all of the factors in O.C.G.A. § 17-14-10. Turner v. State, 312 Ga. App. 799, 720 S.E.2d 264 (2011).   Factors not considered.    - Trial court erred in ordering the defendant to pay restitution in the amount of $7,584.35 to the Crime Victim Compensation Program and $1,000 in token restitution to the victim because the record contained no evidence to support the awards as the state presented no evidence supporting the state's request for $7,584.35, and the record did not show that the trial court considered the factors outlined in O.C.G.A. § 17-14-10(a) before requiring restitution as a condition of probation. Watts v. State, 321 Ga. App. 289, 739 S.E.2d 129 (2013).   Victim not entitled to restitution for time missed to appear at restitution hearing.    - Although the trial court did not err in entering an order requiring the defendant to pay the victim restitution for lost wages based on the work time the victim lost as a direct result of the defendant's criminal conduct towards the victim, which included the 15 days that the victim spent away from work meeting with lawyers, the bank, and law enforcement authorities, as well as the days the victim spent testifying at the criminal proceedings brought against the defendant, the trial court erred in requiring the defendant to compensate the victim for the day the victim took away from work to appear at the restitution hearing. Jackson v. State, 334 Ga. App. 340, 779 S.E.2d 402 (2015).   Juvenile properly ordered to pay restitution for hospital bill.    - Since restitution was expressly authorized as a condition or limitation of the probation of delinquent or unruly juveniles, and as the nature and amount of restitution was supported by a preponderance of the evidence, there was no error in the trial court's order that the defendant pay restitution for the victim's hospital bill. In the Interest of N. T., 355 Ga. App. 205, 843 S.E.2d 877 (2020).   Restitution order proper.    - Under a preponderance of the evidence standard, the trial court did not abuse the court's discretion in concluding that the defendant caused the $5,306.28 in damages to a stolen truck since the defendant was found in possession of the truck, and therefore the defendant was responsible for all damages that the truck incurred; as a result, the trial court properly ordered the defendant to pay a judgment of restitution in the amount of $5,306.28. McCart v. State, 289 Ga. App. 830, 658 S.E.2d 465 (2008).    Trial court did not err in ordering restitution because the state met the state's burden of proving the victim's loss by presenting evidence of the amount the victim had paid the defendant and the value of the work the defendant had completed. Wilson v. State, 355 Ga. App. 73, 842 S.E.2d 521 (2020).   Sentence reversed where failure to consider factors.    - Because the record revealed that the trial court failed to consider factors (1) and (2), that portion of the court's sentence imposing restitution was reversed and remanded for a hearing in compliance with O.C.G.A. § 17-14-10. Slater v. State, 209 Ga. App. 723, 434 S.E.2d 547 (1993).    Failure of the trial court to consider the factors listed in O.C.G.A. § 17-14-10, particularly the defendant's financial condition at the time of resentencing, required vacation of the sentence and remand of the case. Pruitt v. State, 230 Ga. App. 334, 496 S.E.2d 324 (1998); Darden v. State, 233 Ga. App. 353, 504 S.E.2d 256 (1998).    If restitution was imposed pursuant to the entry of a nonnegotiated guilty plea, but there was no evidence in the record that the court considered the factors enumerated in the statute, the sentence would be reversed and the matter would be remanded. Zebley v. State, 234 Ga. App. 18, 505 S.E.2d 562 (1998).    Restitution order was vacated and the case remanded so that the trial court could conduct a hearing in compliance with the statute and enter written findings of fact relating to the factors set forth therein since the trial court held a restitution hearing, but the transcript did not disclose that the court considered each of those factors, and the trial court did not enter specific written findings. Williams v. State, 247 Ga. App. 783, 545 S.E.2d 343 (2001).   Restitution order vacated because evidence on victim's damages was insufficient.    - Restitution order was vacated because evidence on the victim's damages was insufficient when the victim failed to give a fact-supported opinion as to the value of the damaged items and estimated the depreciated value of each item based on numbers defendant "pulled out of [her] head." Gray v. State, 273 Ga. App. 747, 615 S.E.2d 834 (2005).    Restitution order was vacated as the trial court failed to address the O.C.G.A. § 17-14-10 factors, except for the amount of damages sustained by the victim. Gray v. State, 273 Ga. App. 747, 615 S.E.2d 834 (2005).    With respect to a trial court's order of restitution to a defendant under O.C.G.A. § 17-14-10, the state failed to show the amount of restitution by a preponderance of the evidence pursuant to O.C.G.A. § 17-14-7 with respect to that portion of the award for "accounting/auditing/attorney fees," such that the order could not stand. Turner v. State, 312 Ga. App. 799, 720 S.E.2d 264 (2011).   Fair market value not replacement costs.    - Order of restitution was vacated because the state failed to adduce sufficient evidence to support an amount of $500 in damages for the pistol the defendant stole; while the trial court accepted the replacement cost as the fair market value of the gun, the correct determination for the amount of restitution was the fair market value of the property rather than the replacement cost. Austin v. State, 315 Ga. App. 713, 727 S.E.2d 535 (2012).    Order of restitution was vacated because the state failed to adduce sufficient evidence to determine the fair market value of the coin collection the defendant stole; the owner's opinion lacked foundation because there was no showing that the owner had some knowledge, experience, or familiarity with the value of the coins, and absent that foundation, the owner's opinion was nothing more than conjecture, an unsupported conclusion, or a guess. Austin v. State, 315 Ga. App. 713, 727 S.E.2d 535 (2012).   No evidence of victim's expenses.    - Trial court erred in ordering restitution because there was no evidence of expenses or costs to the complaining victim for damages resulting from the alleged crimes; that portion of the sentence imposing restitution was vacated and the case remanded for a hearing in compliance with O.C.G.A. § 17-14-10. Wiggins v. State, 272 Ga. App. 414, 612 S.E.2d 598 (2005), aff'd in part and rev'd in part, 280 Ga. 268, 626 S.E.2d 118 (2006).   Restitution order upheld as supported by the evidence.    - Court upheld a restitution order based on a surgeon's testimony that a recommended surgical procedure that cost $15,000 was not for cosmetic purposes but to allow the victim greater ease of movement, and based on evidence of the defendant's financial situation, the defendant's bachelor's and master's degrees, the defendant's employment, and the defendant's future earning potential as set forth in O.C.G.A. § 17-14-10. Regent v. State, 306 Ga. App. 616, 703 S.E.2d 81 (2010).    Trial court was authorized under O.C.G.A. § 17-14-9 to order the defendant to pay the victim's medical expenses as restitution for damages caused by the defendant's simple battery of the victim in violation of O.C.G.A. § 16-5-23(a) because the court's finding that the victim was injured by and had incurred costs as a result of the defendant's criminal behavior toward the victim was not clearly erroneous; the order for restitution did not exceed the amount of costs the victim incurred. Elsasser v. State, 313 Ga. App. 661, 722 S.E.2d 327 (2011), cert. denied, No. S12C0949, 2012 Ga. LEXIS 555 (Ga. 2012).    Trial court's award of restitution to the homeowners was supported by a preponderance of the evidence because the homeowners essentially suffered the entire loss of use of the homeowners' home, and the trial court determined that these damages flowed from the defendant's false statement which allowed the defendant, a contractor, to skip the requirements for structural engineering and architectural reports on the contractor's renovation of the owners' residence and to avoid county inspections, which would have avoided or detected problems as the problems arose. Wilson v. State, 317 Ga. App. 171, 730 S.E.2d 500 (2012).    Trial court's order regarding restitution was not erroneous as the trial court considered all the factors laid out in O.C.G.A. § 17-14-10(a) and based the court's restitution award on competent evidence proving the amount granted by a preponderance of the evidence. Graf v. State, 327 Ga. App. 598, 760 S.E.2d 613 (2014).   Restitution is limited by thefts during time period alleged in accusation.    - Trial court erred in ordering restitution for $260,637 for thefts from the defendant's employer over a 12-year period because the accusation covered only a two-year period during which $57,000 was taken; under O.C.G.A. §§ 17-14-2(2) and17-14-10, restitution was limited to damages which the victim could recover in a civil action based on the same act. Vaughn v. State, 324 Ga. App. 289, 750 S.E.2d 375 (2013), overruled on other grounds by In the Interest of N. T., 2020 Ga. App. LEXIS 289 (Ga. Ct. App. 2020).    Cited in Jarrett v. State, 161 Ga. App. 285, 287 S.E.2d 746 (1982); Gould v. State, 190 Ga. App. 611, 381 S.E.2d 442 (1989); Barrett v. State, 192 Ga. App. 705, 385 S.E.2d 785 (1989); Queen v. State, 210 Ga. App. 588, 436 S.E.2d 714 (1993); Howard v. State, 213 Ga. App. 542, 445 S.E.2d 532 (1994); Gaskin v. State, 221 Ga. App. 142, 470 S.E.2d 531 (1996); Anderson v. State, 226 Ga. App. 286, 486 S.E.2d 410 (1997); Hartsell v. State, 288 Ga. App. 552, 654 S.E.2d 662 (2007); Patterson v. State, 289 Ga. App. 663, 658 S.E.2d 210 (2008); Patterson v. State, 289 Ga. App. 663, 658 S.E.2d 210 (2008).   OPINIONS OF THE ATTORNEY GENERAL   Disbursement of funds when victim cannot be located.   - Restitution payments should not be returned to the probationer when the intended recipient cannot be located: instead, the funds should be retained for the benefit of the victim until the completion of the seven-year holding period, and at that point, the account should be reported and subsequently delivered to the State Revenue Commissioner in accordance with the laws concerning disposition of unclaimed property. 1987 Op. Att'y Gen. No. U87-17.   RESEARCH REFERENCES   ALR.   - Measure and elements of restitution to which victim is entitled under state criminal statute - payment for installation of alarm or locks or change of locks due to burglary, attempted burglary, or felonious breaking and entering, 44 A.L.R.6th 301.   Propriety, measure, and elements of restitution to which victim is entitled under state criminal statute - cruelty to, killing, or abandonment of, animals, 45 A.L.R.6th 435.