Chapter 9 - Victim Restitution
CHAPTER 9 - VICTIM RESTITUTION
7-9-101. Definitions.
(a) As used in this chapter:
(i) "Criminal activity" means any crime for whichthere is a plea of guilty, nolo contendere or verdict of guilty upon which ajudgment of conviction may be rendered and includes any other crime which isadmitted by the defendant, whether or not prosecuted. In the case ofrestitution ordered under W.S. 7-13-301, "criminal activity" alsoincludes a crime charged against the defendant;
(ii) "Long-term physical health care restitutionorder" means an order entered pursuant to W.S. 7-9-113 through 7-9-115;
(iii) "Pecuniary damage" means all damages which a victimcould recover against the defendant in a civil action arising out of the samefacts or event, including damages for wrongful death. It does not includepunitive damages and damages for pain, suffering, mental anguish and loss ofconsortium;
(iv) "Restitution" means full or partial payment ofpecuniary damage to a victim;
(v) "Victim" means a person who has sufferedpecuniary damage as a result of a defendant's criminal activities. An insurerwhich paid any part of a victim's pecuniary damages shall be regarded as thevictim only if the insurer has no right of subrogation and the insured has noduty to pay the proceeds of restitution to the insurer.
7-9-102. Order to pay upon conviction.
In addition to any other punishmentprescribed by law the court shall, upon conviction for any misdemeanor orfelony, order a defendant to pay restitution to each victim as determined underW.S. 7-9-103 and 7-9-114 unless the court specifically finds that the defendanthas no ability to pay and that no reasonable probability exists that thedefendant will have an ability to pay.
7-9-103. Determination of amount owed; execution.
(a) As part of the sentencing process including deferredprosecutions under W.S. 7-13-301, in any misdemeanor or felony case, the prosecutingattorney shall present to the court any claim for restitution submitted by anyvictim.
(b) In every case in which a claim for restitution issubmitted, the court shall fix a reasonable amount as restitution owed to eachvictim for actual pecuniary damage resulting from the defendant's criminalactivity, and shall include its determination of the pecuniary damage as aspecial finding in the judgment of conviction or in the order placing thedefendant on probation under W.S. 7-13-301. In determining the amount ofrestitution, the court shall consider and include as a special finding, eachvictim's reasonably foreseeable actual pecuniary damage that will result in thefuture as a result of the defendant's criminal activity. A long-term physicalhealth care restitution order shall be entered as provided in W.S. 7-9-113through 7-9-115.
(c) The court shall order the defendant to pay all or part ofthe restitution claimed or shall state on the record specific reasons why anorder for restitution was not entered. If the court determines that thedefendant has no ability to pay and that no reasonable probability exists thatthe defendant will have an ability to pay in the future, the court shall enterspecific findings in the record supporting its determination.
(d) Any order for restitution under this chapter constitutes ajudgment by operation of law on the date it is entered. To satisfy thejudgment, the clerk, upon request of the victim or the district attorney, mayissue execution in the same manner as in a civil action.
(e) The court's determination of the amount of restitution owedunder this section is not admissible as evidence in any civil action.
(f) The defendant shall be given credit against his restitutionobligation for payments made to the victim by the defendant's insurer forinjuries arising out of the same facts or event.
7-9-104. Preparation of plan; contents.
(a) In any case in which the court has ordered restitutionunder W.S. 7-9-102, 7-9-113 or 7-13-301, if the sentencing court orderssuspended imposition of sentence, suspended sentence or probation, the courtshall require that the defendant in cooperation with the probation and paroleofficer assigned to the defendant, or in the case of unsupervised probation anyprobation and parole officer or any other person the court directs, promptlyprepare a plan of restitution including the name and address of each victim,the amount of restitution determined to be owed to each victim pursuant to W.S.7-9-103 or 7-9-114 and a schedule of restitution payments. If the defendant ispresently unable to make any restitution but there is a reasonable possibilitythat the defendant may be able to do so at some time during his probationperiod, the plan of restitution shall also state the conditions under which orthe event after which the defendant shall make restitution. In structuring aplan for reimbursement under this section, victim restitution shall be paid inthe following order:
(i) Pecuniary damages suffered by the victim which have notbeen paid by insurance or from the crime victim's compensation account;
(ii) Payment of other amounts owed by the defendant arising fromthe case.
7-9-105. Submission of plan to court; approval or modification.
The defendant's plan of restitution and thecomments of the probation and parole officer or any other person directed bythe court to assist in the preparation of the restitution plan shall besubmitted promptly to the court. The court shall promptly enter an orderapproving the plan or modifying it and providing for restitution payments tothe extent that the defendant is or may become reasonably able to makerestitution, taking into account the factors enumerated in W.S. 7-9-106. Thecourt may modify the plan at any time upon the defendant's request, upon thecourt's own motion and, for those cases within the provisions of W.S. 7-9-113through 7-9-115, upon the motion of the victim.
7-9-106. Factors considered by probation and parole officer, and bycourt.
(a) The probation and parole officer or other person directedby the court when assisting the defendant in preparing the plan of restitution,and the court before approving or modifying the plan of restitution, shallconsider:
(i) The number of victims;
(ii) The pecuniary damages of each victim including, for thosecases within the provisions of W.S. 7-9-113 through 7-9-115, the long-termphysical health care cost of the victim;
(iii) The defendant's:
(A) Physical and mental health and condition;
(B) Age;
(C) Education;
(D) Employment circumstances;
(E) Potential for employment and vocational training;
(F) Family circumstances; and
(G) Financial condition and whether the defendant has anability to pay or whether a reasonable probability exists that the defendantwill have an ability to pay.
(iv) Whether compensation has been paid to any victim under theCrime Victims Compensation Act;
(v) What plan of restitution will most effectively aid therehabilitation of the defendant; and
(vi) Other appropriate factors.
7-9-107. Notice to victims.
(a) The probation and parole officer or other person directedby the court to assist in preparation of the restitution plan shall attempt todetermine the name and address of each victim and the amount of his pecuniarydamages and may rely on a victim's impact statement made pursuant to W.S.7-21-101 through 7-21-103.
(b) The clerk of the court shall mail to each known victim acopy of the court's order approving or modifying the plan of restitution.
7-9-108. Compliance with plan as condition of probation orsuspension; payments to clerk.
(a) Compliance with the plan of restitution as approved ormodified by the court shall be a condition of the defendant's probation orsuspension.
(b) Restitution payments by the defendant shall be made payableto the office of the clerk in a form acceptable to the clerk.
(c) Any restitution payment mailed to the last known address ofthe victim and returned to the clerk without a forwarding address shall be heldby the clerk for a period of one (1) year following the date of receipt of thereturned payment. A victim who fails to claim the returned payment or toprovide a forwarding address within the one (1) year period forfeits his rightto the payment and the clerk shall forward the amount of payment to the victimservices division within the office of the attorney general for deposit in theaccount established under W.S. 1-40-114.
7-9-109. Failure to comply; modification or extension of plan.
Failure of the defendant to comply withW.S. 7-9-104 or to comply with the plan of restitution as approved or modifiedby the court is a violation of the conditions of probation. If the probationperiod has expired, the restitution order may be enforced by either civil orcriminal contempt proceedings. Criminal contempt under this section ispunishable by imprisonment for not more than one (1) year. The court may modifythe plan of restitution or extend the period of time for restitution, but,except for those cases falling within the provisions of W.S. 7-9-113 through7-9-115, the court may not extend the period of time for restitution beyond ten(10) years following the date of the defendant's discharge from sentence orexpiration of probation under W.S. 7-13-301.
7-9-110. Civil action.
(a) Proceedings, orders and judgments under W.S. 7-9-101through 7-9-115 shall not estop, limit or impair the rights of victims to sueand recover damages from the defendant in a separate civil action. Anyrestitution payment by the defendant to a victim shall be set off against anyjudgment in favor of the victim, however, in a civil action arising out of thesame facts or event.
(b) The fact that restitution was required or made shall not beadmissible as evidence in a civil action unless offered by the defendant.
7-9-111. Limitations on duty of prosecutor; victim's remedy.
Except as provided by W.S. 7-9-103(a), theprosecuting attorney has no obligation to investigate alleged pecuniary damagesor to petition the court for restitution on behalf of a victim. In the eventthat the victim is not satisfied with the restitution plan approved or modifiedby the court, the victim's sole and exclusive remedy is a civil action.
7-9-112. Check fraud.
Notwithstanding any other provision of thischapter, the sentencing court may require any person convicted of check fraudto make restitution in an amount not to exceed twice the amount of thedishonored check in addition to any other punishment imposed under W.S.6-3-702.
7-9-113. Restitution for long-term care.
(a) In addition to any other punishment prescribed by law andany restitution ordered pursuant to W.S. 7-9-102 which did not includelong-term physical health care costs, the court may, upon conviction of anymisdemeanor or felony, order a defendant to pay restitution to a victim inaccordance with the provisions of W.S. 7-9-114 if the victim has sufferedphysical injury as a result of the crime which is reasonably probable torequire or has required long-term physical health care for more than three (3)months.
(b) As used in W.S. 7-9-113 through 7-9-115 "long-termphysical health care" includes mental health care.
7-9-114. Determination of long-term restitution; time for order;enforcement.
(a) In determining the amount of restitution to be ordered forlong-term physical health care, the court shall consider the factors stated inW.S. 7-9-106 together with an estimated monthly cost of long-term physicalhealth care of the victim provided by the victim or his representative. Thevictim's estimate of long-term physical health care costs may be made as partof a victim impact statement under W.S. 7-21-103 or made separately. The courtshall enter the long-term physical health care restitution order at the time ofsentencing. An order of restitution made pursuant to this section shall fix amonthly amount to be paid by the defendant for as long as long-term physicalhealth care of the victim is required as a result of the crime. The order mayexceed the length of any sentence imposed upon the defendant for the criminalactivity. The court shall include as a special finding in the judgment ofconviction its determination of the monthly cost of long-term physical healthcare.
(b) Restitution ordered under this section shall be paid asprovided in W.S. 7-9-108. The restitution order shall be a civil judgmentagainst the defendant and may be enforced by any means provided for enforcingother restitution orders and civil judgments.
7-9-115. Modification of order.
After a long-term physical health carerestitution order has been entered, the court may from time to time, on thepetition of either the defendant or the victim, or upon its own motion, modifythe order as to the amount of monthly payments. Any modification of the ordershall only be based upon a substantial change of circumstances relating to thecost of long-term physical health care or the financial condition of either thedefendant or the victim. The petition shall be filed as part of the originalcriminal docket.