Massachusetts Appeals Court Remands Criminal Case, Ordering Trial Court to Make Specific Finding Regarding Defendant’s Financial Ability to Make Restitution

In a Massachusetts criminal case, it is not unusual for a defendant to be ordered to pay restitution to the victim of his or her crime. If the defendant is placed on probation, timely payment of restitution may be a condition of the defendant not being incarcerated.

If the defendant does not abide by the terms of his or her probation, the trial court may revoke the defendant’s status as a probationer and order that he or she be placed in prison or county jail.

Facts of the Case

In a case recently under consideration by the Commonwealth of Massachusetts Appeals Court, the defendant was a woman who had been convicted on criminal charges (larceny and identity fraud) in 2008. She was sentenced to two years of probation and ordered to pay $28,200 in restitution, at rate of at least $100 per month. The defendant’s probation was extended several times, and her monthly restitution obligation was adjusted both upwards and downwards at various times. In February 2017, the defendant was still on probation and still owed over $14,000 in restitution.

The defendant filed a motion to terminate her probation. The trial judge denied the defendant’s motion but ordered that her restitution payments be reduced back to $100 per month. She appealed, arguing that the trial court’s denial of her motion resulted in additional punishment for her due to her poverty.

Decision of the Court

The appeals court vacated the lower tribunal’s denial of the defendant’s motion to terminate probation and remanded the matter for further proceedings. The court first noted that, on appeal, orders pertaining to restitution are to be reviewed on an abuse of discretion standard. The defendant argued that there was an abuse of discretion present because, at the hearing, she had shown that she lacked the financial ability to pay the restitution ordered previously.

The appellate court agreed with the defendant that her ability to pay should have been considered in setting the restitution amount and that, if she truly lacked the ability to pay, her probation should not have been extended. However, the court noted that the burden of proving the inability to pay was on the defendant. In making such a determination, factors to be considered should have included both the defendant’s ability to earn money and her other ongoing financial obligations.

In reviewing the defendant’s income and expenses as reported to the trial court, the reviewing tribunal had questions about the amount of taxes the defendant paid out of her self-employment income and the exact amount of some of her monthly expenses, such as her car payment and her credit card bills. On remand, the trial court was directed to make specific factual findings regarding the defendant’s affidavit of indigency and her financial ability to make restitution to the victim of her crimes.

Contact a Massachusetts Criminal Defense Attorney

The issue of restitution can come up in several different types of criminal cases – not only theft cases, but also, for example, drunk driving cases involving a personal injury or wrongful death. If you are facing criminal charges and need to speak to a lawyer, the Cape Cod criminal defense team at the Law Offices of John C. Manoog, III will be glad to review your case. For an appointment, call us at 888-262-6664. We have offices in Plymouth and Hyannis.

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