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 [____] COURT OF [____] COUNTY

STATE OF INDIANA

STATE OF INDIANA,

Plaintiff,

v.

[DEFENDANT FULL NAME],

Defendant.

Cause 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 nolo contendere to] [OFFENSE(S)] on [DATE], in violation of Ind. Code § [____].

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

Governing Restitution Statute

Ind. Code § 35-50-5-3 provides:

• (a): The court may, as a condition of probation or without probation, order the person to make restitution to the victim of the crime, the victim's estate, or the family of a deceased victim. The court shall base its order on:
• (1) Property damages based on actual cost of repair or replacement
• (2) Medical and hospital costs
• (3) Earnings lost by the victim
• (4) Funeral, burial, or cremation costs
• (b): The restitution order is a judgment lien against the defendant's property.
• (c): The court may order reasonable installment payments.
• (i)-(m): Mandatory restitution for specified offenses including theft, fraud, exploitation of endangered adults, human trafficking, and certain property crimes.

Victim Information and Claimed Losses

Alleged Victim: [VICTIM NAME]

Claimed Losses:

Disputed Restitution Amount

Amount Requested by State: $[____]

Amount Defendant Contends Is Appropriate: $[____]

Defense Arguments Against Proposed Restitution

A. Discretionary Nature of Restitution

The offense at issue is subject to the general discretionary restitution provision of § 35-50-5-3(a). The court should exercise its discretion to [order a reduced amount / decline to order restitution] because [EXPLAIN].

B. Costs Not Incurred Before Sentencing

Under Indiana case law, only actual costs incurred before sentencing may be considered. Ault v. State, 705 N.E.2d 1078 (Ind. App. 1999). Future expenses are not compensable:

• [DESCRIBE FUTURE/UNINCURRED COSTS]

C. Lack of Causal Connection

The claimed losses for [SPECIFIC ITEM] were not caused by the defendant's criminal conduct.

D. Errors in Calculation

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

E. Defendant's Inability to Pay

The court should consider the Defendant's limited financial resources in determining whether to order restitution and in what amount.

F. Insurance or Collateral Source Offset

The victim has been compensated $[AMOUNT] by [SOURCE]. Restitution should be adjusted to prevent double recovery.

G. Plea Agreement Limitation

☐ The plea agreement did not include restitution, and the court is bound by the terms of the agreement.

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

Under § 35-50-5-3(c), the court may order restitution to be paid in reasonable installments.

Legal Authority and Case Law

1. Ind. Code § 35-50-5-3(a) -- Discretionary restitution; court may order based on actual costs.
2. Ind. Code § 35-50-5-3(i)-(m) -- Mandatory restitution for specified offenses.
3. Ault v. State, 705 N.E.2d 1078 (Ind. App. 1999) -- Only actual costs incurred before sentencing may be considered.
4. Sinn v. State, 693 N.E.2d 78 (Ind. App. 1998) -- Court bound by plea agreement terms; cannot order restitution if not in plea agreement.
5. Rich v. State, 890 N.E.2d 44 (Ind. Ct. App. 2008) -- Restitution must be based on actual loss, not speculative damages.
6. Ind. Code § 35-50-5-3(b) -- Restitution order is a judgment lien.

Certificate of Service

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

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

______________________________________
[ATTORNEY NAME], Esq.
Indiana Attorney No. [____]
[FIRM NAME]
[ADDRESS]
[PHONE] | [EMAIL]

Attorney for Defendant

Indiana-Specific Notes

☐ Generally Discretionary: Restitution is discretionary under § 35-50-5-3(a), but mandatory for certain offenses under subsections (i)-(m).

☐ Actual Costs Before Sentencing: Only actual costs incurred before sentencing are compensable. Ault v. State, 705 N.E.2d 1078.

☐ Plea Agreement Binding: If restitution is not in the plea agreement, the court may be unable to order it. Sinn v. State, 693 N.E.2d 78.

☐ Judgment Lien: Restitution order creates a judgment lien. § 35-50-5-3(b).

☐ Installment Payments: Court may order reasonable installments. § 35-50-5-3(c).

☐ Appellate Review: Abuse of discretion standard.

☐ Enforcement: Enforceable as a civil judgment lien.

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