GA Code § 17-14-2 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 14 - Restitution and Distribution of Profits to Victims of Crimes|Article 1 - Restitution|§ 17-14-2. Definitions

 As used in this article, the term:    "Conviction" means an adjudication of guilt of or a plea of guilty or nolo contendere to the commission of an offense against the laws of this state. Such term includes any such conviction or plea, notwithstanding the fact that sentence was imposed pursuant to Article 3 of Chapter 8 of Title 42. Such term also includes the adjudication or plea of a juvenile to the commission of an act which, if committed by an adult, would constitute a crime under the laws of this state.   "Damages" means all special damages which a victim could recover against an offender in a civil action, including a wrongful death action, based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium. Such special damages shall not be limited by any law which may cap economic damages. Special damages may include the reasonably determined costs of transportation to and from court proceedings related to the prosecution of the crime.   "Offender" means any natural person, firm, partnership, association, public or private corporation, or other legal entity that has been sentenced for any crime or any juvenile who has been adjudged delinquent.   "Ordering authority" means:   A court of competent jurisdiction;   The State Board of Pardons and Paroles;   The Department of Corrections;   The Department of Juvenile Justice;   The Department of Community Supervision; or   Any combination thereof, as is required by the context.     "Parent" means a person who is the legal mother as defined in Code Section 15-11-2, the legal father as defined in Code Section 15-11-2, or the legal guardian. Such term shall not include a foster parent.   "Relief" means any parole or other conditional release from incarceration; the awarding of earned time allowances; reduction in security status; or placement in prison rehabilitation programs, including, but not limited to, those in which the offender receives monetary compensation.   "Restitution" means any property, lump sum, or periodic payment ordered to be made by any offender or other person to any victim by any ordering authority. Where the victim is a public corporation or governmental entity or where the offender is a juvenile, restitution may also be in the form of services ordered to be performed by the offender.   "Restitution order" means any order, decree, or judgment of an ordering authority which requires an offender to make restitution.   "Victim" means any:   Natural person or his or her personal representative or, if the victim is deceased, his or her estate; or   Any firm, partnership, association, public or private corporation, or governmental entity  suffering damages caused by an offender's unlawful act; provided, however, that the term "victim" shall not include any person who is concerned in the commission of such unlawful act as defined in Code Section 16-2-20.       (Code 1933, § 27-3002, enacted by Ga. L. 1980, p. 1382, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 2005, p. 88, § 5/HB 172; Ga. L. 2013, p. 294, § 4-19/HB 242; Ga. L. 2015, p. 422, § 5-35/HB 310.)   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.'"   Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."   Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides, in part, that this Act shall apply to sentences entered on or after July 1, 2015.   Law reviews.   - For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015).   JUDICIAL DECISIONS   Measure of damages for restitution.    - In measuring the appropriate damages for restitution, the court must determine what type of civil action could be maintained by the victim and what the proper measure of damages would be in such a civil action. Garrett v. State, 175 Ga. App. 400, 333 S.E.2d 432 (1985), overruled on other grounds, McCart v. State, 289 Ga. App. 830, 658 S.E.2d 465 (2008).    Fees paid for special grand jurors, traverse jurors, and bailiffs could not properly be included in the sum which the defendant was ordered to pay a victim as restitution. Martin v. State, 189 Ga. App. 483, 376 S.E.2d 888, cert. denied, 189 Ga. App. 911, 376 S.E.2d 888 (1988).    Trial court erred in basing the court's determination of the measure of damages for purposes of restitution on the replacement cost of the items stolen rather than fair market value. Fewox v. State, 243 Ga. App. 651, 534 S.E.2d 121 (2000).    While the trial court was thorough in making the court's written findings as to the calculation of defendant's restitution award, it was difficult to ascertain whether the trial court improperly included amounts which would have been attributed to three counts of theft by receiving for which the defendant was acquitted, which was improper under O.C.G.A. § 17-14-2(2); thus, the matter was remanded for clarification. McMahon v. State, 273 Ga. App. 574, 615 S.E.2d 625 (2005).    As part of a probation order, the trial court did not err in awarding restitution for tools and equipment missing from a stolen truck despite the fact that the probationer was not charged with the theft of those items as restitution could be ordered to the extent that the victim suffered damages as the result of the theft and the theft of the vehicle caused the disappearance of the equipment. 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 cause the victims the loss that the trial court awarded as restitution. McMahon v. State, 284 Ga. App. 192, 643 S.E.2d 236 (2007).    Under preponderance of 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 the defendant to pay the victim restitution after the defendant pled guilty to arson in the first degree because the trial court was authorized to find that the preponderance of the evidence showed that the victim owned the house at the time of the fire, and evidence was presented to show the cost of repairs and its relation to the value of the house prior to the fire, in accordance with the law of damages to real property; the evidence of the background of the victim, a real estate investor who repaired houses personally, provided some evidence to show that the investor had knowledge, experience, or familiarity with the cost of repairs, the value of real estate, and the extent of the damages to the investor's property pursuant to former O.C.G.A. § 24-9-66 (see O.C.G.A. § 24-7-701). Mayfield v. State, 307 Ga. App. 630, 705 S.E.2d 717 (2011).    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).   Reimbursement of medical expenses is not restitution.    - There is no victim suffering damages caused by the defendant's habitual violator or DUI offenses since the county in this case is not a victim as anticipated by the statutory scheme and the medical expenses incurred by the defendant while in custody were not caused by the acts for which the defendant was sentenced; accordingly, the defendant's reimbursement to the county for the defendant's own medical expenses does not fall under the statutory meaning of restitution. Woods v. State, 204 Ga. App. 415, 419 S.E.2d 513 (1992).   Restitution not set by approximation.    - Trial court erred in ordering the defendant juvenile to pay restitution pursuant to O.C.G.A. § 17-14-3 because the amount of restitution was set by approximation, rather than by a proper opinion of the value of the items damaged; O.C.G.A. § 17-14-9 does not permit a trial judge to set the amount of restitution by approximation but requires that the amount be based on proper opinion evidence of fair market value. In the Interest of R.H., 316 Ga. App. 317, 728 S.E.2d 911 (2012).   "Damages" includes interest.    - As it is used in the statutory provisions relating to restitution, "damages" includes interest. Corbin v. State, 202 Ga. App. 464, 415 S.E.2d 14 (1992).   "Restitution order."    - Sentence of both confinement and restitution was void due to illegality. Queen v. State, 210 Ga. App. 588, 436 S.E.2d 714 (1993).    Because the record made clear that the order extending probation effectively placed upon a juvenile the requirement to make restitution during an upcoming period, thus averting the lapse of the probation with the restitution condition unmet, the extension order constituted a restitution order as contemplated by O.C.G.A. § 17-14-2. 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).    Appellate court vacated the order of restitution and remanded the case to the trial court for clarification as although the trial court ruled in the state's favor, the appellate court was unable to determine whether the trial court found as a matter of fact that the defendant had agreed to pay the full amount of restitution or whether the trial court concluded that it was authorized to award the full amount even if the defendant had not so agreed, which would constitute error. O'Brien v. State, 353 Ga. App. 425, 838 S.E.2d 96 (2020).   Necessity of complying with procedural requirements.    - Because the record reflected that the trial court failed to take into consideration any state imposed charges in connection with the restitution payments which the court ordered, remand of the case for a new hearing on the issue of restitution was required. Jones v. State, 246 Ga. App. 857, 542 S.E.2d 584 (2000).   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 the extent those causes 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).   Restitution for items not charged as stolen not required.    - Trial court was not authorized to order the defendant to make restitution as to items that the defendant was not charged with having stolen. The trial court was authorized to order the defendant to make restitution only to the victims who suffered "damages" as the result of the defendant's acts of theft. Bottoms v. State, 194 Ga. App. 862, 392 S.E.2d 59 (1990).   Restitution for crime which defendant was not charged or convicted.    - When a defendant pled guilty in Georgia to forgery after trying to cash a check stolen during a burglary in Tennessee, the restitution part of the sentence was illegal under O.C.G.A. § 17-14-2(2) because the state was seeking restitution for the burglary, for which the defendant had not been charged or convicted in Georgia. Furthermore, because the sentence was illegal, the defendant did not waive appeal of the sentence by entering into a negotiated plea. Smith v. State, 292 Ga. App. 689, 665 S.E.2d 399 (2008).   Sentence requiring defendant to pay restitution while incarcerated held illegal.    - Because that part of a sentence requiring the defendant to pay restitution while incarcerated and pay specific and substantial amounts of restitution both before the commencement of the prison sentence and while on probation was illegal, that portion was vacated, and the defendant's acquiescence to the sentence, either through plea negotiations or a failure to object to the sentence, did not remove the illegality. Sumner v. State, 284 Ga. App. 308, 643 S.E.2d 831 (2007).    Rental reimbursement for rental of vehicle by victim of vehicle theft was properly included in the amount of restitution although in a suit for damages to a vehicle one cannot ordinarily recover an amount in excess of the fair market value of the vehicle before the vehicle was damaged. Sutton v. State, 190 Ga. App. 56, 378 S.E.2d 491 (1989).   Restitution not paid directly to victim.    - Under O.C.G.A. § 17-14-2(9), the trial court could properly order the defendant to make restitution to a charitable fund instead of directly to the victim, as the fund incurred expenses as a result of the defendant's conduct. Adams v. State, 291 Ga. App. 681, 662 S.E.2d 782 (2008), overruled on other grounds, Turner v. State, 312 Ga. App. 799, 720 S.E.2d 264 (2011).   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); Britt v. State, 232 Ga. App. 780, 503 S.E.2d 653 (1998).   Modification of restitution may be ordered by the trial court at any time.    - Trial court erred in dismissing a defendant's motion to modify restitution until the time came for the defendant to pay. Under O.C.G.A. § 17-14-12, the ordering authority, in this case, the trial court pursuant to O.C.G.A. § 17-14-2, retained jurisdiction to modify the restitution order at any time before the expiration of the relief ordered. Wright v. State, 302 Ga. App. 136, 690 S.E.2d 259 (2010).   Restitution award to homeowners for contractor's false statement to county.    - Trial court properly ordered that restitution was to be made directly to the homeowners, even if the homeowners technically were not the direct victims of the crime which the defendant, a contractor, committed of false statement and writing, concealment of facts, under O.C.G.A. § 16-10-20, in applying for a building permit because the homeowners suffered damages due to the lack of oversight of the defendant's work. The evidence at trial directly linked this lack of oversight to the defendant's misrepresentations on the building permit application, and demonstrated that if the defendant had submitted an application that accurately reflected the extent of the work to be performed for the homeowners, more safeguards would have been in place, which would have prevented the extent of the damage. Wilson v. State, 317 Ga. App. 171, 730 S.E.2d 500 (2012).   Restitution is limited by thefts during time period alleged in accusation.    - Trial court erred in ordering restitution for $260,637 for thefts from 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 Nash v. State, 179 Ga. App. 702, 347 S.E.2d 651 (1986); Murphy v. State, 182 Ga. App. 791, 357 S.E.2d 147 (1987); Patrick v. State, 184 Ga. App. 260, 361 S.E.2d 251 (1987); Jackson v. State, 198 Ga. App. 261, 401 S.E.2d 289 (1990); Burke v. State, 201 Ga. App. 50, 410 S.E.2d 164 (1991); Evans v. State, 204 Ga. App. 458, 419 S.E.2d 532 (1992); Anderson v. State, 226 Ga. App. 286, 486 S.E.2d 410 (1997); Jones v. State, 246 Ga. App. 857, 542 S.E.2d 584 (2000); McClure v. State, 295 Ga. App. 465, 673 S.E.2d 856 (2009); Zipperer v. State, 299 Ga. App. 792, 683 S.E.2d 865 (2009); Browning v. State, 303 Ga. App. 805, 695 S.E.2d 291 (2010); Elsasser v. State, 313 Ga. App. 661, 722 S.E.2d 327 (2011); Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 734 S.E.2d 883 (2012); Watts v. State, 321 Ga. App. 289, 739 S.E.2d 129 (2013); Jackson v. State, 334 Ga. App. 340, 779 S.E.2d 402 (2015).   RESEARCH REFERENCES   ALR.   - Persons or entities entitled to restitution as "victim" under state criminal restitution statute, 92 A.L.R.5th 35.