RESTITUTION HEARING BRIEF

TABLE OF CONTENTS

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

Caption

IN THE DISTRICT COURT OF [________________________________]
[JUDICIAL DISTRICT], STATE OF NORTH DAKOTA

Statement of the Case

On [__/__/____], the Defendant, [DEFENDANT FULL NAME], was convicted of [CHARGE(S)] in violation of N.D. Cent. Code § [________________________________]. The conviction arose from events occurring on or about [__/__/____] in [COUNTY NAME] County, North Dakota.

The Defendant entered a plea of [GUILTY / NO CONTEST / WAS FOUND GUILTY AT TRIAL] on [__/__/____]. Sentencing [WAS HELD / IS SCHEDULED] for [__/__/____]. The State has requested restitution in the amount of $[________________________________], and the Defendant respectfully submits this brief in advance of the restitution hearing.

Applicable Restitution Statute

Under North Dakota law, restitution is governed primarily by N.D. Cent. Code § 12.1-32-08, which provides that the court may order a defendant to make restitution or reparation to the victim for pecuniary damages resulting from the offense. The statute authorizes:

• Return of property wrongfully taken from the victim
• Payment for damage to or loss of property
• Reimbursement for medical, psychological, and other expenses incurred as a result of the offense
• Payment of lost wages or income

The court must consider the defendant's ability to pay when ordering restitution. Under N.D. Cent. Code § 12.1-32-07, restitution may be imposed as a condition of probation.

Victim Information and Claimed Losses

The State has identified the following victim(s) and claimed losses:

Victim 1: [________________________________]

Disputed Restitution Amount

The Defendant disputes the restitution amount claimed by the State for the following reasons:

☐ The claimed amount exceeds actual pecuniary damages suffered
☐ The losses are not directly caused by the Defendant's criminal conduct
☐ Insufficient documentation has been provided to support the claimed amount
☐ The victim has received compensation from insurance or other sources
☐ The claimed amount includes losses not recoverable under N.D. Cent. Code § 12.1-32-08
☐ Other: [________________________________]

Defendant's Position on Restitution Amount: $[________________________________]

[________________________________]

Defense Arguments Against Claimed Restitution

A. Causation

[________________________________]

B. Documentation Deficiencies

[________________________________]

C. Improper Loss Categories

[________________________________]

D. Insurance and Third-Party Offsets

[________________________________]

Proposed Alternative Restitution

The Defendant proposes the following alternative restitution amount and terms:

Proposed Total Restitution: $[________________________________]

Defendant's Ability to Pay

Current Employment: [________________________________]
Monthly Gross Income: $[________________________________]
Monthly Net Income: $[________________________________]

Monthly Obligations:

Assets:

Monthly Disposable Income: $[________________________________]

Proposed Payment Plan

The Defendant proposes the following payment schedule:

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

Legal Authority and Case Law

The following legal authorities support the Defendant's position:

1. N.D. Cent. Code § 12.1-32-08 -- Restitution must be limited to pecuniary damages and the court must consider the defendant's ability to pay.

2. State v. Hanson, 2016 ND 34, 875 N.W.2d 485 -- The North Dakota Supreme Court held that restitution must be based on actual losses demonstrated by competent evidence.

3. State v. Burckhard, 2010 ND 148, 787 N.W.2d 693 -- The court must make adequate findings regarding the amount of restitution and the defendant's ability to pay.

4. State v. Olson, 2019 ND 138, 928 N.W.2d 468 -- Restitution is limited to losses directly caused by the defendant's criminal conduct.

Certificate of Service

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

[PROSECUTING ATTORNEY NAME]
[OFFICE TITLE]
[ADDRESS LINE 1]
[ADDRESS LINE 2]
[CITY], North Dakota [ZIP CODE]

☐ Personal Delivery
☐ U.S. Mail, postage prepaid
☐ Electronic Filing / Service
☐ Facsimile

_________________________________________
[ATTORNEY NAME], Attorney for Defendant
[STATE BAR NUMBER]
[FIRM NAME]
[ADDRESS LINE 1]
[CITY], North Dakota [ZIP CODE]
[PHONE NUMBER]
[EMAIL ADDRESS]

NORTH DAKOTA STATE NOTES

• Mandatory vs. Discretionary: Restitution in North Dakota is generally discretionary under N.D. Cent. Code § 12.1-32-08, but it is mandatory in certain cases, including human trafficking offenses under § 12.1-41-09.
• Victims' Constitutional Rights: The North Dakota Constitution, Article I, § 25, provides crime victims with the right to restitution as provided by law.
• Standard of Proof: The State bears the burden of proving the amount of restitution by a preponderance of the evidence.
• Ability to Pay: The court must consider the defendant's current and future ability to pay when setting the restitution amount and payment schedule.
• Appellate Review: Restitution orders are reviewable on appeal for abuse of discretion.
• Civil Remedy Preservation: A restitution order does not preclude the victim from pursuing civil remedies.