Restitution Hearing Brief

RESTITUTION HEARING BRIEF

TABLE OF CONTENTS

1. Caption
2. Statement of the Case
3. Governing Restitution Statute
4. Victim Information and Claimed Losses
5. Disputed Restitution Amount
6. Defense Arguments Against Proposed Restitution
7. Proposed Alternative Restitution
8. Ability-to-Pay Analysis
9. Proposed Payment Plan
10. Legal Authority and Case Law
11. Certificate of Service

Caption

IN THE CIRCUIT COURT OF THE [____] CIRCUIT

STATE OF HAWAI'I

STATE OF HAWAI'I,

Plaintiff,

v.

[DEFENDANT FULL NAME],

Defendant.

Cr. No.: [____]

DEFENDANT'S BRIEF IN SUPPORT OF RESTITUTION HEARING

Statement of the Case

The Defendant, [DEFENDANT FULL NAME], was [convicted of / pleaded guilty to / pleaded no contest to] [OFFENSE(S)] on [DATE], in violation of Haw. Rev. Stat. § [____].

The State has requested restitution in the amount of $[AMOUNT]. The Defendant submits this brief regarding the proper amount of reasonable and verified losses.

Governing Restitution Statute

Haw. Rev. Stat. § 706-646 provides:

• (2): The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim as a result of the defendant's offense, when requested by the victim.
• (3): The court shall not consider the defendant's financial ability to make restitution in determining the amount. The court shall consider financial ability for establishing the time and manner of payment.
• (3): Restitution shall be a dollar amount sufficient to reimburse any victim fully for losses, including but not limited to:
• (a) Full value of stolen or damaged property (replacement cost or repair cost)
• (b) Medical expenses, including mental health treatment, counseling, and therapy
• (c) Funeral and burial expenses
• (d) Lost earnings, including paid leave

Victim Information and Claimed Losses

Alleged Victim: [VICTIM NAME]

Has the Victim Requested Restitution? ☐ Yes ☐ No

Claimed Losses:

Disputed Restitution Amount

Amount Requested by State: $[____]

Amount Defendant Contends Is Supported: $[____]

Defense Arguments Against Proposed Restitution

A. Losses Not Reasonable or Verified

Under § 706-646(2), restitution must be for "reasonable and verified" losses. The prosecution bears the burden of presenting a prima facie showing. See State v. DeMello, 130 Haw. 332 (App.), 310 P.3d 1033 (2013).

The following claims are not reasonable or verified:

• [DESCRIBE UNVERIFIED CLAIM]

B. No Causal Nexus

Where no nexus between the defendant's criminal conduct and the victim's injuries has been demonstrated, restitution cannot be imposed. See State v. Tuipuapua, 121 Haw. 191 (App.), 216 P.3d 117 (2009) (no restitution where defendant's conduct did not cause victim's injuries).

C. Errors in Calculation

• [DESCRIBE ERROR 1]
• [DESCRIBE ERROR 2]

D. Lost Wages Limitation

E. Insurance Does Not Reduce Restitution

The Defendant acknowledges that insurance does not reduce the restitution amount under Hawaii law. However, the Defendant notes that [SPECIFIC ARGUMENT].

F. Speculative Future Expenses

Future expenses must be "firmly established" to be compensable. Claimed future expenses that are speculative should be excluded.

Proposed Alternative Restitution

Total Proposed Restitution: $[____]

Ability-to-Pay Analysis

Employment Status: [EMPLOYED / UNEMPLOYED / INCARCERATED / DISABLED]

Monthly Income: $[____]

Monthly Expenses: $[____]

Monthly Disposable Income: $[____]

Proposed Payment Plan

• Total Restitution Amount: $[____]
• Monthly Installment: $[____]
• Payment Duration: [____] months

Legal Authority and Case Law

1. Haw. Rev. Stat. § 706-646 -- Mandatory restitution when victim requests; reasonable and verified losses.
2. Haw. Rev. Stat. § 706-647 -- Restitution enforceable as a civil judgment.
3. State v. DeMello, 130 Haw. 332 (App.), 310 P.3d 1033 (2013) -- Prosecution bears the burden of a prima facie showing on restitution.
4. State v. Tuipuapua, 121 Haw. 191 (App.), 216 P.3d 117 (2009) -- No restitution absent causal nexus between criminal conduct and losses.
5. State v. Loebel, 127 Haw. 241, 277 P.3d 335 (Ct. App. 2012) -- Insurer is not a "direct victim" under § 706-646.
6. State v. DeMello, 136 Haw. 193, 361 P.3d 420 (2015) -- Lost wages are compensable as restitution.
7. Haw. Rev. Stat. § 806-73(d) -- Payment of restitution is a precondition for parole release.

Certificate of Service

I hereby certify that on [DATE], I served a true and correct copy of this Restitution Hearing Brief upon:

[PROSECUTOR NAME]
[PROSECUTING ATTORNEY'S OFFICE]
[ADDRESS]

______________________________________
[ATTORNEY NAME], Esq.
Hawaii Bar No. [____]
[FIRM NAME]
[ADDRESS]
[PHONE] | [EMAIL]

Attorney for Defendant

Hawaii-Specific Notes

☐ Mandatory When Requested: Restitution is mandatory when requested by the victim. § 706-646(2).

☐ Reasonable and Verified: Losses must be "reasonable and verified." The prosecution has the burden.

☐ Ability to Pay -- Amount vs. Schedule: Court cannot consider ability to pay for the amount, but must consider it for the time and manner of payment. § 706-646(3).

☐ No Insurance Offset: Insurance payments do not reduce the restitution amount. Insurers are not "direct victims."

☐ Bail Applied to Restitution: Unforfeited bail money is applied toward restitution, fines, or fees. § 706-646(4).

☐ Parole Condition: Restitution payment is a precondition for parole. § 806-73(d).

☐ Enforcement: Enforceable as a civil judgment. § 706-647.

☐ Suspended During Incarceration: Court-ordered payment schedule is suspended while defendant is in custody; collection continues per ch. 353.

This template is provided for educational and informational purposes only by ezel.ai. It does not constitute legal advice. Consult a licensed Hawaii attorney before use.