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In 2005, the Florida Legislature redefined the meaning of the term “restitution” in our state. When the Legislature amended Florida’s Victim Restitution Act in 2005, it broadly expanded what was previously a fairly narrow issue. In days past, a victim of a crime was entitled to things directly caused by a defendant’s crime, i.e., medical bills, damage to property, etc.  Losses such as lost wages and incidental expenses were not included in this statute, and had to be sued for in civil court.

Then the Legislature changed the statute to include losses indirectly cause by a crime.  This vague addition has opened up the criminal justice system to an enormous potential for abuse: a potential that has, on many occasion, been realized.  I see this happen, most often, in cases that involve a pre-existing relationship.  For example: two brothers who have been at odds with each other for years.  They finally get into a physical confrontation that lands one of them in the hospital.  After the injuring brother pleads guilty or is convicted, the victim shows up to court and asks for his medical bills to be paid for, which the judge kindly grants.  Then the victim asks for the wages he has lost because he was later fired from his job.  The reason he was fired?  The victim testifies that it was because he missed so much work while he was in the hospital, but the truth is that he was chronically late.  How much are the lost wages?  The victim claims that he made $25 an hour, but the truth is he only made $17 an hour.  The judge considers this testimony and grants the victim an enormous award for restitution.

Why should this testimony be enough?  Because of Florida’s new restitution statute.  Under the statute, the victim has no burden but merely asserting a number to the Court.  The burden to establish the veracity of these claims is met solely by the victim claiming it is so.  There is no testimony from experts, no discovery entitling the defendant to the victim’s employment or tax records, no meaningful opportunity to rebut these allegations.

Florida’s restitution statute is unfair.  It intrudes into areas that used to be reserved for civil law suits.  In the civil realm, safeguards like discovery production, expert testimony, and jury findings ensure that the number arrived at is a fair one.  Instead, an enraged victim is given the chance to take money from a defendant, with no check on honesty.

This statute needs to change.  Its authority should be restricted to areas easily provable and not commonly subject to dispute, such as medical bills and the cost to repair property.  Until then, there will always be the possibility for injustice in Florida’s criminal justice system.  If you are facing a restitution issue, don’t face it alone.  Visit my website at http://www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

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3 Comments

  1. i got in trouble for petty theft and when when they took me to juvi they questioned me and they asked if i smoked marijuana and i said no but i have smoked before. and iguess they took it as a yes and so no they are making me take drug test every week at the beaches resource center. i did not get caught with any drugs and i was not on any dugs when i commited the petty theft.and they know that. is there any thing i can do to get out of the drug tests. ive already completed everything i needed to do for the petty theft. its just i answered a question wrong soim in trouble. if it helps iwas 17 when i commited the crime, but i am 18 now. thank you.

    • Without knowing more information, I’m not sure. If you come in for a free appointment, we will be able to get some more information and talk about your options. There usually is a way to terminate post-adjudicatory supervision, but it may require an attorney to go to court for you. Please call me so we can chat more.

      ~Robert Shafer, 350-9333

      • Typically law enforcement is supposed to show you the warrant, though not the affidavit for the warrant explaining the reasons for the warrant. However, failure to do so does not have any sort of remedy that I am aware of.


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