HB485: Restitution; payments of defendant on supervised probation.
HOUSE BILL NO. 485
Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-305.1 and 19.2-368.15 of the Code of Virginia are amended and reenacted as follows:
§ 19.2-305.1. Restitution for property damage or loss; community service.
A. Notwithstanding any other provision of law, no person convicted of a crime in violation of any provision in Title 18.2, which resulted in property damage or loss, shall be placed on probation or have his sentence suspended unless such person shall make at least partial restitution for such property damage or loss, or shall be compelled to perform community services, or both, or shall submit a plan for doing that which appears to the court to be feasible under the circumstances.
B. Notwithstanding any other provision of law, any person who, on or after July 1, 1995, commits, and is convicted of, a crime in violation of any provision in Title 18.2 shall make at least partial restitution for any property damage or loss caused by the crime or for any medical expenses or expenses directly related to funeral or burial incurred by the victim or his estate as a result of the crime, may be compelled to perform community services and, if the court so orders, shall submit a plan for doing that which appears to be feasible to the court under the circumstances.
B1. Notwithstanding any other provision of law, any person, who on or after July 1, 2005 commits and is convicted of a crime in violation of § 18.2-248 involving the manufacture of any controlled substance, may be ordered, upon presentation of suitable evidence of such costs, by the court to reimburse the Commonwealth or the locality for the costs incurred by the jurisdiction, as the case may be, for the removal and remediation associated with the illegal manufacture of any controlled substance by the defendant.
B2. Notwithstanding any other provision of law, any person who, on or after July 1, 2015, commits and is convicted of a violation of § 18.2-138 for damage to the Capitol or any building, monument, statuary, artwork, or other state property in Capitol Square, or at any other property assigned to the Capitol Police, shall be ordered to pay restitution to the Commonwealth for the full amount of damages. Any person who, on or after July 1, 2015, commits and is convicted of a violation of § 18.2-405, 18.2-407, or 18.2-408 in Capitol Square, or at any other property assigned to the Capitol Police, shall be ordered to pay restitution to the Commonwealth for the full amount of damages to the Capitol or any building, monument, statuary, artwork, or other state property in Capitol Square, or at any other property assigned to the Capitol Police, to which damage is caused during such riot or unlawful assembly. In any prosecution under § 18.2-138, 18.2-405, 18.2-407, or 18.2-408, testimony of the Division of Engineering and Buildings of the Department of General Services or the Division of Risk Management shall be admissible as evidence of value or extent of damages or cost of repairs to the Capitol or any building, monument, statuary, artwork, or other state property in Capitol Square, or at any other property assigned to the Capitol Police. For the purposes of this subsection, "Capitol Square" means the grounds and the interior and exterior of all buildings in that area in the City of Richmond bounded by Bank, Governor, Broad, and Ninth Streets. "Capitol Square" includes the exterior of all state buildings that are at least 50 years old and bordering the boundary streets.
C. At or before the time of sentencing, the court shall receive and consider any plan for making restitution submitted by the defendant. The plan shall include the defendant's home address, place of employment and address, social security number and bank information. If the court finds such plan to be reasonable and practical under the circumstances, it may consider probation or suspension of whatever portion of the sentence that it deems appropriate. By order of the court incorporating the defendant's plan or a reasonable and practical plan devised by the court, the defendant shall make restitution while he is free on probation or work release or following his release from confinement. Additionally, the court may order that the defendant make restitution during his confinement, if feasible, based upon both his earning capacity and net worth as determined by the court at sentencing.
D. At the time of sentencing, the court shall determine the amount to be repaid by the defendant and the terms and conditions thereof. If community service work is ordered, the court shall determine the terms and conditions upon which such work shall be performed. The court shall include such findings in the judgment order. The order shall specify that sums paid under such order shall be paid to the clerk, who shall disburse such sums as the court may, by order, direct. Any court desiring to participate in the Setoff Debt Collection Act (§§ 58.1-520 through 58.1-535) for the purpose of collecting fines or costs or providing restitution shall, at the time of sentencing, obtain the social security number of each defendant.
E. At the time of sentencing, the court shall enter the amount of restitution to be repaid by the defendant, the date by which all restitution is to be paid, and the terms and conditions of such repayment on a form prescribed by the Office of the Executive Secretary of the Supreme Court of Virginia. If the attorney for the Commonwealth participated in the prosecution of the defendant, the attorney for the Commonwealth or his designee shall complete, to the extent possible, all portions of the form excluding the amount of restitution to be repaid by the defendant and the terms and conditions of such repayment. If the attorney for the Commonwealth did not participate in the prosecution of the defendant, the court or the clerk shall complete the form. A copy of the form, excluding contact information for the victim, shall be provided to the defendant at sentencing. A copy of the form shall be provided to the attorney for the Commonwealth and to the victim, his agent, or his estate upon request and free of charge.
F. Unreasonable failure to execute the plan by the defendant shall result in revocation of the probation or imposition of the suspended sentence. A hearing shall be held in accordance with the provisions of this Code relating to revocation of probation or imposition of a suspended sentence before either such action is taken.
G. Where a court has placed a defendant on supervised probation and ordered a probation agency to monitor the defendant's payment of restitution, the probation agency shall notify the court and the attorney for the Commonwealth of the amount of any restitution that remains unsatisfied and the defendant's payment history 30 days prior to the defendant's release from supervision. Such notice shall be in writing, and the attorney for the Commonwealth shall provide a copy of the notice to the victim. In addition, where the agency requests that a defendant be removed from supervision prior to completion of the term ordered by the court, such request shall list the amount of any restitution that remains unsatisfied and include the defendant's payment history. Where a court has ordered the payment of restitution and no probation agency is ordered to monitor the defendant's payment, if any restitution remains unsatisfied on the date upon which restitution is to be paid in full, the court shall schedule a hearing within 90 days of such date for the purpose of reviewing the defendant's noncompliance with the order.
H. A defendant convicted of an offense under § 18.2-374.1, 18.2-374.1:1, or 18.2-374.3 shall be ordered to pay mandatory restitution to the victim of the offense in an amount as determined by the court. For purposes of this subsection, "victim" means a person who is depicted in a still or videographic image involved in an offense under § 18.2-374.1, 18.2-374.1:1, or 18.2-374.3.
The Commonwealth shall make reasonable efforts to notify victims of offenses under § 18.2-374.1, 18.2-374.1:1, or 18.2-374.3.
H. I. If
restitution is ordered to be paid by the defendant to the victim of a crime and
the victim can no longer be located or identified, the clerk shall deposit any
such restitution collected to the Criminal Injuries Compensation Fund for the
benefit of crime victims. The administrator shall reserve a sum sufficient in
the Fund from which he shall make prompt payment to the victim for any proper
claims. Before making the deposit he shall record the name, last known address
and amount of restitution due each victim appearing from the clerk's report to
be entitled to restitution.
I. J. If
restitution pursuant to § 19.2-305 or this section is ordered to be paid by the
defendant to the victim of a crime or other entity, and the Criminal Injuries
Compensation Fund has made any payments to or on behalf of the victim for any
loss, damage, or expenses included in the restitution order, then upon
presentation by the Fund of a written request that sets forth the amount of
payments made by the Fund to the victim or on the victim's behalf, the entity
collecting restitution shall pay to the Fund as much of the restitution
collected as will reimburse the Fund for its payments made to the victim or on
the victim's behalf.
J. K. Whenever
a defendant is ordered to pay restitution, any sums collected shall be used
first to satisfy such restitution order and any collection costs associated
with restitution prior to being used to satisfy any fine, forfeiture, penalty,
or cost assessed against the defendant.
§ 19.2-368.15. Subrogation of Commonwealth to claimant's right of action; lien in favor of the Commonwealth; disposition of funds collected.
Acceptance of an award made pursuant to this chapter shall
subrogate the Commonwealth, to the extent of such award, to any right or right
of action accruing to the claimant or the victim to recover payments on account
of losses resulting from the crime with respect to which the award is made.
However, except as otherwise provided in subsection I J of § 19.2-305.1, the
Commonwealth shall not institute any proceedings in connection with its right
of subrogation under this section within one year from the date of commission
of the crime, unless any claimant or victim's right or action shall have been
previously terminated. All funds collected by the Commonwealth in a proceeding
instituted pursuant to this section shall be paid over to the Comptroller for
deposit into the Criminal Injuries Compensation Fund.
Whenever any person receives an award from the Criminal Injuries Compensation Fund, the Commonwealth shall have a lien for the total amount paid by the Fund, or any portion thereof compromised pursuant to the authority granted under § 2.2-514, on the claim of such injured person or his personal representative against the person, firm, or corporation who is alleged to have caused such injuries. The Fund's lien shall be inferior to any lien for payment of reasonable attorney fees and costs, but shall be superior to all other liens created by § 8.01-66.2. The injured person may file a petition or motion to reduce the lien and apportion the recovery pursuant to § 8.01-66.9. The Fund's lien shall become effective when notice is provided pursuant to § 8.01-66.5 and liability shall attach pursuant to § 8.01-66.6.