GA Code § 17-14-7 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 14 - Restitution and Distribution of Profits to Victims of Crimes|Article 1 - Restitution|§ 17-14-7. Right of Offender to Offer Restitution Plan to Ordering Authority; Consideration and Adoption of Plan; Hearing to Determine Restitution; Burden of Proof; Liability Among Multiple Offenders; Payment for Multiple Victims; Waiver of Victim's Rights

  Any offender may offer a restitution plan to the ordering authority. If a plan is offered, it shall be the duty of the ordering authority to consider the factors stated in Code Section 17-14-10 and to make the plan part of a restitution order if acceptable to the ordering authority.   If the parties have not agreed on the amount of restitution prior to sentencing, the ordering authority shall set a date for a hearing to determine restitution. Any dispute as to the proper amount or type of restitution shall be resolved by the ordering authority by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the state. The burden of demonstrating the financial resources of the offender or person being ordered to pay restitution and the financial needs of his or her dependents shall be on the offender or person being ordered to pay restitution. The burden of demonstrating such other matters as the ordering authority deems appropriate shall be upon the party designated by the ordering authority as justice requires.   If the ordering authority finds that more than one offender has contributed to the loss of a victim, the court may make each offender liable for payment of the full amount of restitution or may apportion liability among the offenders to reflect the level of contribution to the victim's loss and economic circumstances of each offender.   If the ordering authority finds that more than one victim has sustained a loss requiring restitution by an offender, the court may provide for a different payment schedule for each victim based on the type and amount of each victim's loss and accounting for the economic circumstances of each victim. In any case in which the state or any of its political subdivisions is a victim and thus is due restitution, the ordering authority shall ensure that any other victim receives full restitution before the state or a political subdivision receives restitution.   A victim may waive his or her right to obtain restitution pursuant to this article. Any such waiver shall be made in writing and filed with the court or ordering authority having jurisdiction over the criminal case. Such waiver shall not affect any other rights or remedies that the victim may have against the offender under the laws of this state or the United States or any of the several states.    (Code 1933, § 27-3007, enacted by Ga. L. 1980, p. 1382, § 1; Ga. L. 2005, p. 88, § 5/HB 172; Ga. L. 2006, p. 72, § 17/SB 465.)   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   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 cases 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).   Restitution order proper.    - Because the defendant conceded to converting the funds of two victims when the defendant entered guilty pleas to two counts of theft by conversion under O.C.G.A. § 16-8-4, under O.C.G.A. § 17-14-7(b) the state was only required to establish the amounts taken from the victims that were expended on their behalf or were already repaid to the victims; the trial court's restitution order, which took those amounts into consideration, as required by O.C.G.A. § 17-14-6(a), was proper. Hartsell v. State, 288 Ga. App. 552, 654 S.E.2d 662 (2007).    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 the defendant to pay the victim restitution after the victim 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).    Evidence was sufficient to sustain an award of $800 restitution under O.C.G.A. § 17-14-7(b) as a special condition of probation because in the course of the robbery with which the defendant was charged under O.C.G.A. § 16-8-40(a)(2), the defendant took $500 cash and $300 in money orders from the car of the victim. Ezebuiro v. State, 308 Ga. App. 282, 707 S.E.2d 182 (2011).    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).    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).    There was no error in the imposition of restitution since there was no dispute about the amount of restitution due, thus eliminating the trial court's obligation to conduct a hearing. Moreover, the defendant never requested a hearing, nor did the defendant move for a continuance or ask to present any evidence with regard to restitution. Townsend v. State, 357 Ga. App. 111, 848 S.E.2d 210 (2020).   No enhancement of sentence by requiring restitution.    - Because the trial court's determination of the restitution amount was authorized by O.C.G.A. § 17-14-7(b) and did not unlawfully enhance a defendant's sentence, the defendant did not have a substantive right to have the restitution hearing held within a certain time; the defendant waived the rights to be present and to confrontation by voluntarily choosing not to attend the hearing. Williams v. State, 311 Ga. App. 152, 715 S.E.2d 440 (2011), cert. denied, No. S11C1915, 2012 Ga. LEXIS 69 (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).   Value of dog for restitution.    - Trial court did not err in assessing the value of a dog the defendant killed at $3,000 because evidence of the knowledge, experience, and familiarity of a witness with the value of labrador retrievers trained to hunt created a basis for the value stated. Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714 (2012).   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).   Waiver of right to restitution hearing.    - Although the defendant had a right to a restitution hearing under O.C.G.A. § 17-14-7(b), the defendant waived that right by acquiescing in the trial court's restitution order in the expectation of receiving a more lenient sentence than that recommended by the state (which the defendant in fact did receive). Cameron v. State, 295 Ga. App. 670, 673 S.E.2d 59 (2009).    Defendant waived any error in the decision of the trial court to decide the question of restitution as a part of the defendant's sentencing hearing, rather than in a separate and distinct hearing, because the trial court gave the defendant and the defendant's attorney a choice of when they wanted to hold the sentencing hearing in the case, and they opted to proceed the same day as the jury announced the jury's verdict. Although the defendant's trial attorney indicated that the attorney was not expecting an award of restitution, the attorney did not object to that award, did not present or request to present evidence on the issue of restitution at the time, and did not request a separate hearing on the issue of restitution. Wilson v. State, 317 Ga. App. 171, 730 S.E.2d 500 (2012).   Waiver of error with respect to requirements of restitution hearing.    - Defendant waived any error with respect to the statutory requirements of a restitution hearing under O.C.G.A. § 17-14-7(b) because the defendant was allowed to offer argument on the issue of restitution and did not object to the trial court proceeding to decide the issue of restitution at that time; nor did the defendant ask for a continuance, ask that a restitution hearing be set for a later date, or state that the defendant had evidence to present on the question of restitution. Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714 (2012).   Deciding restitution as part of sentencing hearing.    - Defendant waived any error in the decision of the trial court to decide the question of restitution as a part of the sentencing hearing, rather than in a separate and distinct hearing, because the defendant did not object to the trial court proceeding to decide the issue of restitution at that time, nor did the defendant ask for a continuance, ask that a restitution hearing be set for a later date, or state that the defendant had evidence to present on the question of restitution. Ezebuiro v. State, 308 Ga. App. 282, 707 S.E.2d 182 (2011).   Defendant failed to present evidence of expenses.    - 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).   Defendant failed to show lack of financial resources.    - Defendant was not entitled to relief from the trial court's restitution order because the defendant presented no evidence to prove that the defendant lacked the financial resources to pay such an order. Tobias v. State, 319 Ga. App. 320, 735 S.E.2d 113 (2012).   Restitution inappropriate after state failed to prove value of vehicle.    - Trial court erred in ordering the defendant to pay restitution after the defendant pled guilty to theft by receiving stolen property, a vehicle, because the state failed to prove the fair market value of a vehicle when no evidence was presented that the condition of the vehicle was considered in determining the value of the vehicle, which appeared to be based totally on the vehicle identification number; although an insurance company that was seeking to recover money from the defendant was forced to value the vehicle before the vehicle was recovered, that did not prevent the state from introducing evidence, such as testimony from the victim or others with such knowledge, concerning the condition of the vehicle at the time of the theft. Browning v. State, 303 Ga. App. 805, 695 S.E.2d 291 (2010).   Apportionment of restitution award not required.    - With respect to a trial court's order of restitution to a defendant under O.C.G.A. §§ 17-14-7 and17-14-10, although the trial court was permitted to apportion liability between the defendant and another individual who was involved in the fake loan scheme, the court did not commit error by failing to do so as the evidence showed that the defendant was personally responsible for the greater amount of the total loss. Turner v. State, 312 Ga. App. 799, 720 S.E.2d 264 (2011).   Restitution order vacated because evidence of victim's damages inadequate.    - 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).    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).    State failed to meet the state's burden of proof by presenting insufficient evidence as to the amount of restitution for the defendant's arson conviction as the state failed to present evidence of repair cost, save the victim's vague testimony that the victim could not afford to repair the victim's home, and there was likewise no indication that repair of the home would be an absurd undertaking. Overby v. State, 315 Ga. App. 735, 728 S.E.2d 278 (2012).   Restitution cannot be 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).   Restitution order vacated because evidence of victim's damages inadequate.    - 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).   Absence of hearing and prior agreement vacated restitution.    - There was no indication that the parties agreed on the amount of restitution prior to sentencing. The court simply announced the restitution order during sentencing without a hearing or any discussion whatsoever, and without any input from the defendant which violated O.C.G.A. § 17-14-7(b). Parker v. State, 320 Ga. App. 319, 741 S.E.2d 159 (2013).    Juvenile court erred by ordering the juvenile to pay restitution when no restitution hearing was held and there was no evidence adduced at the adjudication and disposition hearings with regard to the amount of the victim's loss or the juvenile's ability to pay restitution; consequently, the case was remanded for a restitution hearing in accordance with the procedures set forth in O.C.G.A. § 17-14-1 et seq. In the Interest of D. D., 335 Ga. App. 676, 782 S.E.2d 728 (2016).    Cited in Nelson v. State, 329 Ga. App. 300, 764 S.E.2d 883 (2014).