29-2281 Restitution; determination of amount; manner of payment.
29-2281. Restitution; determination of amount; manner of payment.To determine the amount of restitution, the court may hold a hearing at the time of sentencing. The amount of restitution shall be based on the actual damages sustained by the victim and shall be supported by evidence which shall become a part of the court record. The court shall consider the defendant's earning ability, employment status, financial resources, and family or other legal obligations and shall balance such considerations against the obligation to the victim. A person may not be granted or denied probation or parole either solely or primarily due to his or her financial resources or ability or inability to pay restitution. The court may order that restitution be made immediately, in specified installments, or within a specified period of time not to exceed five years after the date of judgment or defendant's final release date from imprisonment, whichever is later. Restitution payments shall be made through the clerk of the court ordering restitution. The clerk shall maintain a record of all receipts and disbursements. SourceLaws 1986, LB 956, § 2; Laws 1992, LB 1059, § 26.AnnotationsBefore restitution can be properly ordered, the trial court must consider (1) whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal defendant is capable of paying. An evidentiary hearing is required to support a restitution order under this section. Restitution shall be ordered after a hearing and should be based on evidence of both actual damages and the defendant's ability to pay. State v. Holecek, 260 Neb. 976, 621 N.W.2d 100 (2000).Before restitution can be properly ordered, the trial court must consider: (1) Whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal defendant is capable of paying. The amount of actual damages and the amount of restitution a criminal defendant is capable of paying shall be based on sworn information which may be documentary in nature. For purposes of restitution, the court's consideration of "the defendant's earning ability, employment status, financial resources, and family or other legal obligations" is mandatory. The plain language of this section and the case law require appropriate sworn documentation in the record of both the actual damages sustained by the victim and the defendant's ability to pay restitution. State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999).If the sentencing court decides that a hearing is necessary to determine the amount of restitution, that hearing must be held at the time of sentencing. State v. Campbell, 247 Neb. 517, 527 N.W.2d 868 (1995).A sentencing court is not limited by the maximum criminal fine authorized for the offense in ordering a person to make restitution as a condition of probation. State v. Stueben, 240 Neb. 170, 481 N.W.2d 178 (1992).Record lacked sufficient documentation to support victim's assertion of lost wages. State v. McLain, 238 Neb. 225, 469 N.W.2d 539 (1991).Before restitution can be properly ordered, the trial court must consider (1) whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal defendant is capable of paying. State v. Hosack, 12 Neb. App. 168, 668 N.W.2d 707 (2003).Trial court's failure to inform defendant whether restitution must be made immediately, in specified installments, or within a specified time not to exceed 5 years was plain error. State v. Mettenbrink, 3 Neb. App. 7, 520 N.W.2d 780 (1994).A victim's unsworn and uncorroborated statements in a presentence report fall short of the requirement that a victim's actual damages be supported by evidence in the record. State v. McGinnis, 2 Neb. App. 77, 507 N.W.2d 46 (1993).