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 DISTRICT COURT OF [____] COUNTY, KANSAS

[____] JUDICIAL DISTRICT

STATE OF KANSAS,

Plaintiff,

v.

[DEFENDANT FULL NAME],

Defendant.

Case 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 K.S.A. § [____].

The State has requested restitution in the amount of $[AMOUNT]. The Defendant submits this brief to address the proper amount and workability of the restitution order.

Governing Restitution Statute

• K.S.A. § 21-6604(b)(1): The court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime.
• K.S.A. § 22-3424(d)(1): Upon request of the victim or victim's family, the court shall hold a restitution hearing before imposing sentence. The defendant may waive the hearing and accept the court's determination.
• K.S.A. § 21-6604(b)(2): The restitution order is a judgment enforceable by garnishment or other execution.
• K.S.A. § 21-6604(b)(4): Restitution is due immediately unless the court orders specified time or installments.

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. Compelling Circumstances Rendering Restitution Unworkable

The Defendant demonstrates the following compelling circumstances rendering the proposed restitution unworkable:

• [DESCRIBE COMPELLING CIRCUMSTANCE 1]
• [DESCRIBE COMPELLING CIRCUMSTANCE 2]

B. Restitution Limited to Crimes of Conviction

The State seeks restitution for [SPECIFIC ITEM] which was not part of the offense of conviction. Under State v. Miller, 51 K.A.2d 869 (2015), restitution is limited to damage or loss caused by the crime(s) of conviction.

C. Valuation Disputes

The State's valuation of [ITEM] at $[AMOUNT] exceeds the fair market value. The proper valuation is $[AMOUNT] based on [EVIDENCE].

D. Errors in Calculation

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

E. Insurance or Collateral Source Offset

The victim has received $[AMOUNT] from [SOURCE].

F. Constitutional Concerns

The Defendant notes the constitutional developments in State v. Robison, 314 Kan. 245 (2021) and State v. Arnett, 314 Kan. 183 (2021), and reserves any applicable constitutional objections.

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
• Start Date: [DATE]

Under K.S.A. § 21-6604(b)(4), restitution is due immediately unless the court orders specified time or installments.

Legal Authority and Case Law

1. K.S.A. § 21-6604(b)(1) -- Mandatory restitution for damage or loss caused by crime.
2. K.S.A. § 22-3424(d) -- Restitution hearing procedures.
3. State v. Shank, 304 Kan. 89, 369 P.3d 322 (2016) -- Restitution is the rule; defendant bears burden to show compelling circumstances.
4. State v. Holt, 305 Kan. 839, 390 P.3d 1 (2017) -- For unworkability claim with life sentence, must show inability to pay upon release.
5. State v. Taylor, 317 Kan. 364, 530 P.3d 431 (2023) -- Defendant must present evidence of inability to pay when obligation is due.
6. State v. Miller, 51 K.A.2d 869, 355 P.3d 716 (2015) -- Restitution limited to crimes of conviction.
7. State v. Hall, 247 P.3d 1050 (Kan. App. 2011) -- Fair market value is the usual standard.
8. State v. Smith, 56 Kan. App. 2d 1205, 443 P.3d 360 (2019) -- Replacement costs may be ordered.
9. State v. Robison, 314 Kan. 245, 496 P.3d 89 (2021) -- Constitutional limitations on restitution procedures (Section 5 Kansas Bill of Rights).
10. State v. Arnett, 314 Kan. 183, 496 P.3d 928 (2021) -- Severance of unconstitutional provisions.
11. State v. Wilson, 319 Kan. 68, 552 P.3d 1228 (2024) -- Monetary interest may be awarded as part of restitution.

Certificate of Service

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

[PROSECUTOR NAME]
[COUNTY/DISTRICT ATTORNEY'S OFFICE]
[ADDRESS]

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

Attorney for Defendant

Kansas-Specific Notes

☐ Mandatory Restitution: Court shall order restitution unless compelling circumstances render it unworkable. K.S.A. § 21-6604(b)(1).

☐ Defendant's Burden: Defendant bears the burden to demonstrate compelling circumstances. State v. Shank, 304 Kan. 89 (2016).

☐ Fair Market Value Standard: Fair market value is the usual standard. State v. Hall, 247 P.3d 1050.

☐ Limited to Crimes of Conviction: Restitution limited to damage/loss from convicted offenses. State v. Miller, 51 K.A.2d 869 (2015).

☐ Constitutional Issues: Kansas Supreme Court in State v. Robison (2021) found certain restitution procedures unconstitutional under Sec. 5 of Kansas Bill of Rights. Verify current status.

☐ Due Immediately: Restitution is due immediately unless court sets payment schedule. K.S.A. § 21-6604(b)(4).

☐ Enforcement: Enforceable as a civil judgment via garnishment or execution. K.S.A. § 21-6604(b)(2)-(3).

☐ Collection Agent: After 60 days of noncompliance, court assigns collection agent. K.S.A. § 21-6604(b)(3).

☐ Interest: Court may award monetary interest as part of restitution. State v. Wilson, 319 Kan. 68 (2024).

☐ Civil Offset: Restitution paid set off against civil recovery. K.S.A. § 60-4304.

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