Present law authorizes a sentencing court to direct a defendant to make restitution to the victim of the offense as a condition of probation. Whenever the court believes that restitution may be proper, or the victim of the offense or the district attorney general requests, the court must order the presentence service officer to include in the presentence report documentation regarding the nature and amount of the victim's pecuniary loss. As used in present law, "pecuniary loss" generally includes reasonable out-of-pocket expenses incurred by the victim resulting from the filing of charges or cooperating in the investigation and prosecution of the offense.
Present law requires the court to specify at the time of the sentencing hearing the amount and time of payment or other restitution to the victim. A defendant, victim, or district attorney general at any time may petition the sentencing court to adjust or otherwise waive payment or performance of any ordered restitution or any unpaid or unperformed portion of the restitution. The court must schedule a hearing and give the victim and the defendant notice of the hearing, and inform the victim and defendant that each will have an opportunity to be heard.
Present law provides the following with regard to paying restitution:
(1) If the court sentences a defendant to payment of restitution and believes that payment to more than one victim is proper, then the court must determine the pecuniary loss of each victim and order the amount of restitution to each victim;
(2) If, as a result of the defendant's criminal conduct, the victim or victims of the offense are dead at the time of sentencing, then the court may sentence the defendant to pay restitution to the victim's or victims' next-of-kin; and
(3) This law does not prohibit or delay a victim from applying for and receiving any compensation to which the victim is entitled under the Criminal Injuries Compensation Act.
Upon expiration of the time of payment or the payment schedule imposed, if any portion of restitution remains unpaid, then the victim or the victim's beneficiary may convert the unpaid balance into a civil judgment. Within the 12-month period following expiration of the time of payment or the payment schedule imposed, the victim or the victim's beneficiary may file a certified copy of the restitution order with an appropriate civil court having jurisdiction over the total amount of restitution ordered.
At the same time the victim or victim's beneficiary files a certified copy of the restitution order with the civil court, present law requires the victim or victim's beneficiary to personally serve the defendant. The service must give notice to the defendant of the victim's or victim's beneficiary's intent to convert the restitution order to a civil judgment, and include a copy of the restitution order and a statement as to the amount of unpaid restitution the victim or victim's beneficiary alleges the defendant still owes.
Upon service of the defendant and receipt of the defendant's answer, if any, the civil court must conduct a hearing. Both the victim or victim's beneficiary and the defendant must be permitted to offer proof at this hearing. If the court finds by a preponderance of the evidence presented that the amount of restitution actually paid is less than the total amount of restitution ordered, then the court must enter a judgment in favor of the victim or the victim's beneficiary and against the defendant for the amount of the unpaid balance of the restitution.
Present law provides that a civil judgment entered pursuant to this law remains in effect from the date of entry until it is paid in full or is otherwise discharged and shall be enforceable by the victim or the victim's beneficiary in the same manner and to the same extent as other civil judgments are enforceable.
This bill adds to the present law by clarifying that a "victim," as used in the provisions above, includes a reciprocal whether or not formed under the laws of this state, when the reciprocal has compensated a subscriber for loss incurred as a result of the offense, to the extent that the reciprocal paid the compensation to the subscriber. A "reciprocal" means the aggregation of persons obligated under a reciprocal insurance agreement ("subscribers") under a common name.

Statutes affected:
Introduced: 40-35-304