Restitution Hearing Brief

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 CRIMINAL COURT FOR [________________________________] COUNTY
AT [________________________________], TENNESSEE
[________________________________] JUDICIAL DISTRICT

Statement of the Case

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

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

Applicable Restitution Statute

Tennessee restitution is governed primarily by T.C.A. § 40-35-304:

• Discretionary Authority: The sentencing court may direct a defendant to make restitution to the victim as a condition of probation.
• Mandatory Hearing: Whenever the court believes restitution may be proper, or the victim or DA requests it, the court shall hold a hearing to determine the amount and manner of payment.
• Scope of Restitution: Restitution may include return of property, payment for damage to or loss of property, medical and counseling expenses, lost wages, and funeral expenses.
• Ability to Pay: The court shall consider the defendant's financial resources, future ability to pay, and the nature of the burden payment will impose.
• Civil Judgment for Nonpayment: If the defendant defaults, the unpaid balance may be converted to a civil judgment in favor of the victim.
• Modification: The defendant or the State may petition the court to modify the restitution amount or payment schedule.

Under Tenn. Const. Art. I, § 35, crime victims have the constitutional right to restitution from the offender.

Victim Information and Claimed Losses

Victim 1: [________________________________]

Disputed Restitution Amount

The Defendant disputes the claimed restitution for the following reasons:

☐ The losses are not directly caused by the Defendant's criminal conduct
☐ Insufficient documentation supports the claimed amount
☐ The victim has been compensated by insurance or other sources
☐ The claimed amount includes non-compensable items
☐ The amount exceeds actual losses suffered
☐ Other: [________________________________]

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

Defense Arguments Against Claimed Restitution

A. Scope of Compensable Losses

[________________________________]

B. Causal Connection

[________________________________]

C. Documentation Deficiencies

[________________________________]

D. Insurance and Third-Party Offsets

[________________________________]

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

Legal Authority and Case Law

1. T.C.A. § 40-35-304 -- Restitution as condition of probation; mandatory hearing when requested; court considers ability to pay.

2. State v. Smith, 898 S.W.2d 742 (Tenn. Crim. App. 1994) -- Restitution must be based on actual losses and supported by evidence in the record.

3. State v. Bottoms, 87 S.W.3d 95 (Tenn. Crim. App. 2001) -- The court must make findings on the record regarding the amount and manner of restitution.

4. State v. Johnson, 968 S.W.2d 883 (Tenn. Crim. App. 1997) -- The court must consider the defendant's ability to pay when setting restitution.

5. T.C.A. § 40-35-304(f) -- Unpaid restitution may be converted to a civil judgment enforceable by the victim.

Certificate of Service

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

[DISTRICT ATTORNEY GENERAL NAME]
[JUDICIAL DISTRICT]
[ADDRESS LINE 1]
[CITY], Tennessee [ZIP CODE]

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

_________________________________________
[ATTORNEY NAME], Attorney for Defendant
[BPR NUMBER]
[FIRM NAME]
[ADDRESS LINE 1]
[CITY], Tennessee [ZIP CODE]
[PHONE NUMBER]
[EMAIL ADDRESS]

TENNESSEE STATE NOTES

• Discretionary but Standard: Restitution is discretionary but routinely ordered as a condition of probation under T.C.A. § 40-35-304.
• Mandatory Hearing: The court must hold a hearing when restitution is requested by the victim or DA.
• Ability to Pay: The court must consider the defendant's financial resources and the burden of payment.
• Civil Judgment Conversion: Unpaid restitution may be converted to a civil judgment under T.C.A. § 40-35-304(f).
• Modification Available: Either party may petition to modify the restitution amount or payment schedule.
• Victims' Constitutional Right: Tenn. Const. Art. I, § 35 provides victims a constitutional right to restitution.
• Sentencing Reform Act: Restitution is considered under the Tennessee Criminal Sentencing Reform Act of 1989.
• No Specific Time Limit: Tennessee does not impose a statutory time limit for completing restitution payments as part of probation, but the court may set deadlines.