Collecting Criminal Restitution Orders in Florida

Our firm is often asked, what, if any, legal right in collection does an aggrieved victim have against a criminal defendant who was ordered to pay restitution in a preceding criminal action?  In short, an aggrieved party that is either the state or named as a victim in a resulting criminal Restitution Order has an enforceable right to restitution identical to a judgment holder.  Being the named victim in the criminal Restitution Order directs the offender to pay restitution for this person’s benefit and the victim is allowed to enforce that right through the civil collection process.  To perfect that right, a victim may do many things, including filing a Civil Restitution Lien to attach to property acquired by the offender after the Restitution Order is issued.  This lien lasts for twenty years.

If an aggrieved party does not qualify as a victim in the preceding criminal action, a separate civil action for damages may be appropriate. One advantage to seeking relief in the preceding criminal action through a Restitution Order is that the offender is prevented from denying the essential allegations of the underlying offense in any subsequent civil proceeding if one is necessary. Whether the order of criminal restitution is appropriate depends on whether the aggrieved party falls within the statutory definition of “victim.”  If not, then a separate civil action is necessary to recoup any losses suffered.

A Restitution Order may be enforced by the state or the victim(s) named in the Restitution Order.  Fla. Stat. § 775.089(5).  Enforcement of the Restitution Order is accomplished in the same manner as a civil judgment and becomes a lien on real and personal property once recorded.  Id.   The debt resulting from the Restitution Order is not dischargeable in bankruptcy.  Id. at § 775.089(10)(b).  One caveat, stemming from Florida’s extensive history of protecting homesteads, is that any lien resulting from a Criminal Restitution Order cannot lawfully attach to homestead property.  See Ergos v. State, 670 So.2d 1079, 1080 (Fla. 2nd DCA 1996).

The Civil Restitution Lien

An additional enforcement option is to file a Civil Restitution Lien against the convicted criminal.  Fla. Stat. § 960.295(1).  This provides for a judgment lien on the real and personal property of the convicted criminal and goes beyond the recorded Criminal Restitution Lien in that it attaches to property obtained after the Restitution Order is entered.  Fla. Stat. § 960.294(1).  Once recorded, the Civil Restitution Lien lasts for twenty years.  Id. at § 960.294(4).

A Civil Restitution Lien may be enforced by the state, the crime victim, and other aggrieved parties.  Fla. Stat. § 960.295(1).  The term “victim” is statutorily defined as any “person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant’s offense or criminal episode. . .”  Fla. Stat. § 775.089(1)(c).  The property subject to the lien is any real or personal property of the offender, and any future acquired property of the offender until such time as the Restitution Order is satisfied.  Fla. Stat. § 960.294(1).

Criminal restitution and civil damages are distinct remedies.  Kirby v. State, 863 So.2d 238, 242 (Fla. 2003).  Restitution ordered in a criminal action does not preclude recovery of a civil damages award.  However, restitution is set off from any subsequent civil recovery.  Fla. Stat. § 960.295(1).  Of particular benefit in bringing a civil action where the underlying offense was convicted is that the defendant cannot deny the elements of that offense in subsequent civil proceedings.  Fla. Stat. § 775.089(8).  In order to invoke beneficial use of § 775.089(8), a plaintiff must establish:  (1) the offender was convicted of the offense in a criminal proceeding, (2) the crime is one that gives rise to restitution, (3) the plaintiff was a victim of the crime, and (4) the civil suit is based on the same essential allegations as the criminal suit.  Id.

In practice, it is important to track the same elements of the criminal offense in the civil pleadings.  Florida civil courts treat the facts established a criminal court of the same jurisdiction as conclusive and will not relitigate the events for which the defendant was convicted.  Part of the reason for this is because the burden of proof in a criminal action, beyond a reasonable doubt, is higher than that required in a civil action.  Collateral estoppel provides the most powerful effect in a Motion for Summary Judgment.  A Motion for Summary Judgment will be granted when there are no genuine issues of material fact.  When pled correctly, the defendant will not be able to raise any genuine issues of material fact with regard to any of essential elements of the allegations that parallel the criminal elements for which he was convicted.

Collecting on a Criminal Restitution Order

A collection of the restitution order, better known as the enforcement of the order, can be put forth “by the state, or by a victim named in the order to receive the restitution, in the same manner as a judgment in civil action.”  Fla. Stat. § 775.089(5).  Aside from typical post-judgment execution mechanisms, once a Restitution Order is entered, the court may enter a separate order requiring deduction of income due and payable by the defendant for as long as the restitution amount remains unpaid.  Fla. Stat. § 775.089(12).  The income deduction order is accompanied by a statement of defendant rights, which sets forth details of the deduction pertaining to enforcement and violation.  See Id.  This statement of rights places an affirmative obligation on the defendant to notify the court within seven days of any changes in address or payors.  See Id.  The statute provides a mechanism for defendants to protest enforcement of the income deduction order under the right set of circumstances.  See Id.

In enforcing a restitution order that was given as additional punishment in which the court finds the defendant has the ability to pay the restitution, the enforcement proceedings may shift the restitution order to an effective civil judgment and proceedings in collection are similar to any means authorized to collect a civil judgment.  Fla. Stat. § 775.089(10).  If the victim needs to enforce in a civil action, “the defendant shall be liable for costs and attorney’s fees incurred by the victim in enforcing the order.”  Fla. Stat. § 775.089(5).

To enforce a restitution order as a civil judgment, the following steps must be taken:

1. Record the judgment and restitution order.
2. If the defendant has any real estate property to be levied, a Writ of Execution needs to be acquired after at least ten days from the entry date of the judgment and restitution order.
3. The recorded document must be brought to one of two departments, Criminal Felony or Misdemeanor.  Either of the departments, depending on the ordering court, will issue the Writ of Execution.
4. Once the Writ of Execution is issued, the judgment needs to be registered with the Department of State.  In an attempt to seize personal property, registering is mandatory.  In an attempt to seize real estate, registering is not mandatory but highly recommended.
5. Once ready to place a levy on identified property owned by the defendant, the Sheriff’s Office has a list of Execution and Replevin Requirements that must be met before the property can be levied.  If all requirements have been met, then the levy package may be brought to the Sheriff’s office to place a levy on the identified property.

Execution and Replevin requirements include the following:

Personal Property

1. Original writ of execution, a certified copy of the writ or an electronic copy of the writ, which was signed and certified by the Clerk of Court as prescribed by the Florida rules of civil procedure (Form 1.914);
2. Specific and complete levy instructions, to include but not limited to a payment statement, balance, property specifically described to include the serial number or vehicle identification number, and a harmless paragraph;
3. Proof of ownership, if titled;
4.  Judgment lien certificate(s);
5. Creditors’ Affidavit;
6. Address or addresses where the personal property can be located;
7. Copy of the final judgment(s);
8. Sufficient cost deposit; and
9. Point of contact letter with a stamped self-addressed envelope.

Real Property

1. Original writ of execution, a certified copy of the writ or an electronic copy of the writ, which was signed and certified by the Clerk of Court as prescribed by the Florida rules of civil procedure (Form 1.914);
2. Specific and complete levy instructions that contain an exact legal description and physical address; 
3. A most current copy of the warranty deed or quit claim deed certified by the clerk of court;
4. Creditors’ Affidavit ;
5. Copy of final judgment(s);
6. Sufficient cost deposit; and
7. A point of contact letter with a stamped self-addressed envelope.

Conclusion

Should you be in a position where you are the victim of a crime that requires restitution at any phase of the process, please contact an attorney who can assist you in ensuring the appropriate amount of restitution is collected.