RESTITUTION HEARING BRIEF

TABLE OF CONTENTS

1. Caption
2. Brief Header
3. Statement of the Case
4. Statutory Framework
5. Victim Information
6. Disputed Restitution Amount
7. Defense Arguments
8. Proposed Alternative Amount
9. Ability-to-Pay Analysis
10. Payment Plan Proposal
11. Legal Authority
12. Conclusion
13. Certificate of Service

Caption

IN THE GENERAL COURT OF JUSTICE

[________________________________] COURT DIVISION

[________________________________] COUNTY, NORTH CAROLINA

Brief Header

DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT

Defense Counsel: [________________________________]
NC State Bar No.: [________________________________]
Firm: [________________________________]
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

Statement of the Case

On or about [__/__/____], the Defendant, [________________________________], was charged with [________________________________] in violation of N.C.G.S. Section [________________________________].

On [__/__/____], the Defendant was [convicted by plea / convicted at trial] of the following offense(s):

On [__/__/____], the Court sentenced the Defendant to [________________________________].

Statutory Framework

N.C.G.S. Article 81C (Sections 15A-1340.34 through 15A-1340.38) governs restitution in North Carolina.

• Restitution Authority: Under N.C.G.S. 15A-1340.34, when sentencing a defendant convicted of a criminal offense, the court may order the defendant to make restitution to the victim.

• Notice Requirement: The court shall not enter a restitution order unless the district attorney and the victim have been given notice and an opportunity to be heard. Notice must be provided at least 15 days prior to the hearing (N.C.G.S. 15A-1340.36(a)).

• Determination of Amount: Under N.C.G.S. 15A-1340.36(a), in determining the amount of restitution, the court shall consider: the defendant's resources (real and personal property), ability to earn, obligations to support dependents, and other matters pertaining to the defendant's ability to make restitution.

• Partial Restitution: If the damages exceed the defendant's ability to pay, the court may order partial restitution and must state the reasons on the record (N.C.G.S. 15A-1340.36(a)).

Victim Information

Disputed Restitution Amount

Defense Arguments

A. Causation

[________________________________]

B. Amount Calculation Errors

[________________________________]

C. Inability to Pay

[________________________________]

D. Speculative Damages

[________________________________]

E. Insurance Coverage Offset

☐ Victim received insurance proceeds of $[________________________________]
☐ Insurance claim pending for $[________________________________]
☐ No insurance coverage applicable

[________________________________]

F. Collateral Source

[________________________________]

Proposed Alternative Amount

Based on the foregoing arguments, the Defense respectfully proposes a total restitution amount of $[________________________________], calculated as follows:

Ability-to-Pay Analysis

Income

Assets

Monthly Obligations

Net Monthly Disposable Income: $[________________________________]

Payment Plan Proposal

The Defendant respectfully proposes the following payment plan:

• Total Restitution Amount: $[________________________________]
• Initial Lump Sum Payment: $[________________________________] (if applicable)
• Monthly Payment Amount: $[________________________________]
• Payment Start Date: [__/__/____]
• Estimated Completion Date: [__/__/____]

Legal Authority

1. State v. Wilson, 340 N.C. 720 (1995) -- Restitution must be causally connected to the criminal offense of conviction.

2. State v. Hunt, 80 N.C. App. 190 (1986) -- The court must consider the defendant's ability to pay in determining the restitution amount and may order partial restitution.

3. State v. Daye, 78 N.C. App. 753 (1986) -- Restitution must be supported by the record and limited to actual losses; speculative damages are improper.

4. N.C.G.S. 15A-1340.34 -- Authorizes courts to order restitution as part of sentencing.

5. N.C.G.S. 15A-1340.36 -- Establishes factors for determining restitution amount, including the defendant's resources and ability to pay.

6. N.C.G.S. 15A-1340.38 -- Provides for enforcement of restitution orders as civil judgments.

Conclusion

For the foregoing reasons, the Defense respectfully requests that this Court:

☐ Reduce the restitution amount from $[________________________________] to $[________________________________];
☐ Order partial restitution consistent with the Defendant's ability to pay;
☐ Exclude speculative and unsupported damages from the restitution order;
☐ Credit insurance proceeds and collateral source payments against the restitution amount;
☐ Approve the proposed payment plan as set forth herein;
☐ Grant such other and further relief as the Court deems just and proper.

Dated: [__/__/____]

Respectfully submitted,

________________________________________
[________________________________]
Attorney for Defendant
NC State Bar No. [________________________________]

Certificate of Service

I, [________________________________], hereby certify that on [__/__/____], I served a true and correct copy of the foregoing DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT on the following parties by the method indicated:

☐ Personal delivery
☐ U.S. Mail, first class, postage prepaid
☐ Electronic service via [________________________________]

District Attorney's Office:
[________________________________]
[________________________________]
[________________________________]

Victim(s) / Victim's Attorney (if applicable):
[________________________________]
[________________________________]
[________________________________]

Dated: [__/__/____]

________________________________________
[________________________________]

North Carolina-Specific Notes

• Mandatory vs. Discretionary: Restitution is discretionary under N.C.G.S. 15A-1340.34; the court "may" order restitution. However, it is commonly ordered as a condition of probation.
• Standard of Proof: The amount must be supported by the record. The court determines the amount based on evidence presented.
• Appellate Review: Reviewed for abuse of discretion. The appellate court examines whether the amount is supported by the evidence and whether the court considered the required statutory factors.
• Enforcement: Under N.C.G.S. 15A-1340.38, when restitution exceeds $250, the order may be enforced as a civil judgment. It must be docketed and indexed in the county of conviction.
• Partial Restitution: North Carolina expressly permits partial restitution when the defendant's ability to pay is limited (N.C.G.S. 15A-1340.36(a)). The court must state reasons on the record.
• Notice Requirement: The court must provide at least 15 days' notice to the district attorney and victim before the restitution hearing (N.C.G.S. 15A-1340.36(a)). Victim notice must be sent by first-class mail.