Restitution Hearing Brief

notes and remove them before filing.
3. South Carolina mandates restitution hearings for crimes resulting in pecuniary damages.
4. The restitution order must specify a monthly payment schedule resulting in full payment by end of 80% of the offender's supervision period.
5. File this brief with the Court of General Sessions prior to the restitution hearing.
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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

STATE OF SOUTH CAROLINA
COUNTY OF [________________________________]
IN THE COURT OF GENERAL SESSIONS

Statement of the Case

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

The Defendant entered a plea of [GUILTY / NOLO CONTENDERE / WAS FOUND GUILTY AT TRIAL] on [__/__/____]. The State has requested restitution in the amount of $[________________________________]. This brief is submitted in advance of the restitution hearing scheduled for [__/__/____].

Applicable Restitution Statute

South Carolina mandates restitution hearings under S.C. Code Ann. § 17-25-322:

• Mandatory Hearing: When a defendant is convicted of a crime resulting in pecuniary damages or loss, the court must hold a hearing to determine the amount of restitution, unless the defendant agrees to the amount in open court.
• Parties' Rights: The defendant, victim(s), their representatives, the Attorney General, and the Solicitor all have the right to be present and heard.
• Factors for Consideration: The court considers:
  1. Financial resources of both defendant and victim
  2. Defendant's ability to pay on an installment basis
  3. Anticipated rehabilitative effect on the defendant
  4. Burden or hardship upon the victim
  5. Mental, physical, and financial well-being of the victim
• Payment Schedule: The restitution order must specify a monthly payment schedule resulting in full payment by the end of 80% of the offender's supervision period.
• Collection Fee: The Department of Probation, Parole, and Pardon Services assesses a 20% collection fee.

Under S.C. Const. Art. I, § 24(A)(9), victims have the constitutional right to "receive prompt and full restitution."

Victim Information and Claimed Losses

Victim 1: [________________________________]

Disputed Restitution Amount

The Defendant disputes the claimed restitution for the following reasons:

☐ The claimed losses are not "pecuniary damages" resulting from the criminal conduct
☐ The losses are not causally connected to the Defendant's criminal act
☐ Insufficient documentation supports the claimed amount
☐ The victim has been compensated by insurance or other sources
☐ The claimed amount does not account for joint and several liability with co-defendants
☐ Other: [________________________________]

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

Defense Arguments Against Claimed Restitution

A. Pecuniary Damages Limitation

[________________________________]

B. Causal Connection

[________________________________]

C. Documentation Deficiencies

[________________________________]

D. Insurance and Third-Party Offsets

[________________________________]

E. Joint and Several Liability Considerations

[________________________________]

Proposed Alternative Restitution

Proposed Total Restitution: $[________________________________]

Defendant's Ability to Pay

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

Monthly Obligations:

Monthly Disposable Income: $[________________________________]

Proposed Payment Plan

• Total Restitution Amount: $[________________________________]
• 20% Collection Fee: $[________________________________]
• Total with Collection Fee: $[________________________________]
• Supervision Period: [________________________________]
• 80% of Supervision Period: [________________________________]
• Required Monthly Payment (to pay in full by 80% mark): $[________________________________]
• Proposed Monthly Payment: $[________________________________]
• Payment Start Date: [__/__/____]

Legal Authority and Case Law

1. S.C. Code Ann. § 17-25-322 -- Mandatory restitution hearing; court must consider five enumerated factors.

2. State v. Gulledge, 326 S.C. 220, 487 S.E.2d 590 (1997) -- Restitution must be based on actual pecuniary damages supported by evidence.

3. State v. Frazier, 357 S.C. 161, 592 S.E.2d 620 (2004) -- The court must conduct a hearing and make findings on the record.

4. S.C. Code Ann. § 17-25-323 -- The trial court retains jurisdiction to modify the manner of payment until restitution is paid in full or the sentence expires.

5. S.C. Code Ann. § 17-25-322(E) -- An offender may not be granted a pardon until restitution and collection fees are paid in full.

Certificate of Service

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

[SOLICITOR NAME]
[JUDICIAL CIRCUIT] Solicitor's Office
[ADDRESS LINE 1]
[CITY], South Carolina [ZIP CODE]

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

_________________________________________
[ATTORNEY NAME], Attorney for Defendant
[SC BAR NUMBER]
[FIRM NAME]
[ADDRESS LINE 1]
[CITY], South Carolina [ZIP CODE]
[PHONE NUMBER]
[EMAIL ADDRESS]

SOUTH CAROLINA STATE NOTES

• Mandatory Hearing: The court must hold a restitution hearing unless the defendant agrees to the amount in open court.
• Five-Factor Test: The court considers financial resources, ability to pay, rehabilitative effect, victim burden, and victim well-being.
• 80% Payment Deadline: The restitution order must specify a payment schedule resulting in full payment by end of 80% of the supervision period.
• 20% Collection Fee: DPPPS assesses a 20% collection fee on restitution, excluded from amounts paid to the victim.
• Joint and Several Liability: Co-defendants are jointly and severally liable for restitution.
• Pardon Prohibition: No pardon may be granted until restitution and collection fees are paid in full.
• Civil Judgment Conversion: Under § 17-25-323, unpaid restitution may be converted to a civil judgment with a judgment lien.
• Constitutional Right: Victims have a constitutional right to prompt and full restitution under S.C. Const. Art. I, § 24(A)(9).