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 SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF [________________________________]

Brief Header

DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT

Defense Counsel: [________________________________]
WSBA No.: [________________________________]
Firm: [________________________________]
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

Statement of the Case

On or about [__/__/____], the Defendant, [________________________________], was charged with [________________________________] in violation of RCW [________________________________].

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

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

Statutory Framework

RCW 9.94A.750 and 9.94A.753 govern restitution under Washington's Sentencing Reform Act of 1981.

• Mandatory Restitution: Under RCW 9.94A.753(5), the court shall order restitution whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property, unless extraordinary circumstances exist which make restitution inappropriate.

• Standard of Proof: The State must prove the damages by a preponderance of the evidence.

• Finding of Loss: Under RCW 9.94A.753, the court shall make a finding as to the amount of the victim's loss and if the record does not contain sufficient evidence to support such finding, the court may conduct a hearing.

• Modification: Under RCW 9.94A.753, the portion of the sentence concerning restitution may be modified as to amount, terms, and conditions during any period the offender remains under the court's jurisdiction. The court may not reduce the total amount because the offender lacks ability to pay.

• Investigation Duty: Under RCW 9.94A.750, it is the duty of the prosecuting attorney to investigate restitution and recommend it when appropriate and feasible.

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. Kinneman, 155 Wn.2d 272 (2005) -- Restitution must be causally connected to the criminal offense; the court may not order restitution for losses unrelated to the crime.

2. State v. Enstone, 137 Wn.2d 675 (1999) -- Restitution is limited to "easily ascertainable damages"; speculative or unascertainable damages are not recoverable.

3. State v. Davison, 116 Wn.2d 917 (1991) -- The court should consider the defendant's financial circumstances when setting payment terms, though inability to pay does not reduce the total amount.

4. RCW 9.94A.750 -- Establishes the duty to investigate restitution and defines recoverable losses.

5. RCW 9.94A.753 -- Mandates restitution for offenses resulting in injury, damage, or property loss absent extraordinary circumstances; governs modification of restitution terms.

6. RCW 9.94A.760 -- Governs legal financial obligations, including the persistence of restitution obligations.

Conclusion

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

☐ Reduce the restitution amount from $[________________________________] to $[________________________________];
☐ Find extraordinary circumstances warranting departure from full restitution;
☐ Exclude speculative and not easily ascertainable 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
WSBA 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 [________________________________]

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

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

Dated: [__/__/____]

________________________________________
[________________________________]

Washington-Specific Notes

• Mandatory vs. Discretionary: Restitution is mandatory under RCW 9.94A.753(5) when the offense results in injury, damage, or property loss, unless "extraordinary circumstances" make restitution inappropriate. The court must make findings on the record to support an extraordinary circumstances determination.
• Standard of Proof: Preponderance of the evidence. The State bears the burden of proving the amount.
• Appellate Review: Reviewed for abuse of discretion. The appellate court examines whether the amount is supported by the evidence and whether the court properly applied the statutory framework.
• Enforcement: Under RCW 9.94A.760, restitution obligations persist beyond the period of supervision. The court retains jurisdiction to modify terms.
• No Reduction for Inability to Pay: The court may not reduce the total restitution amount due to inability to pay (RCW 9.94A.753). This is a critical distinction from many other states.
• Easily Ascertainable Damages: Washington limits restitution to "easily ascertainable damages" (RCW 9.94A.750(1)), which provides a stronger basis for challenging speculative claims than in many other states.
• Extraordinary Circumstances: To decline mandatory restitution, the court must find "extraordinary circumstances" on the record, which is a high bar.