prosecuting attorney – restitution
At sentencing or disposition, courts must order “full restitution” to any victim of the defendant’s course of conduct giving rise to a conviction or adjudication (or to the victim’s estate). Mich Const 1963, Art I, Sec 24 (1); MCL 780.766 (2). Restitution must be a condition of probation or parole, and probation officers must review files twice a year regarding payments. MCL 780.766 (11), (18).
Still, not all restitution orders are paid in full during the defendant’s term of probation. What can you do?
If your restitution order is not yet paid in full, you must be proactive to collect it. An order of restitution is a civil judgment and is recordable as a lien against the defendant’s property. You do not have to file a separate civil lawsuit unless you have damages or losses that are not covered by the restitution order (e.g., “pain and suffering”). MCL 780.766 (13). A criminal case order of restitution never expires until it is satisfied in full. MCL 780.766 (13). It is not dischargeable in bankruptcy. 11 USC 523(a)(6), (9) and 1328(a)(3).
This information will help you start collecting the remainder of restitution owed to you, and guide you to the forms used. You may contact a private attorney for assistance in collecting the remaining restitution, or you can complete the forms yourself.
This web page is not a complete instruction for every question that may arise. Please consult with a private attorney if you have further questions.
Discovery of Assets
Before you can begin self-help collection, you have to find out what assets the defendant has.
Serve an Affidavit of Judgment Debtor [SCAO Form DC 87], or file a Subpoena [SCAO Form MC11] for a Judgment Debtor’s Examination to find out what assets, income sources, debts, etc. the defendant has. Fill both sides of the Subpoena out completely; include a list of documents the defendant must bring to the meeting (e.g., vehicle titles, property deeds, bank records, pay stubs, tax returns, credit card records). Your criminal case’s judge must sign the subpoena. You are responsible to serve the defendant. At the scheduled hearing, the defendant just give you information about assets, income, etc. These become leads for your collection efforts.
Record the Lien
Record “certified copies” of the Judgment of Sentence and any Restitution Order at a county Register of Deeds where the defendant owns property. (You will need addresses and legal descriptions of the real property owned by the defendant). The Judgment of Sentence acts as a lien against the defendant’s real property, “clouds the title” of the property, and can be paid from the value o any of the real property when it is sold or transferred. There may be a small fee to obtain a certified copy of the Judgment of Sentence from the original criminal case’s court clerk’s office, and may also be a small fee to record the document(s) at the Register of Deeds.
GARNISH THE DEFENDANT’S WAGES OR OTHER INCOME
The defendant’s wages (or other income paid to the defendant on a regular, periodic basis, like rent, land contract payments, etc.) can be garnished for unpaid restitution. To collect this type of income, file the Request and Writ for Garnishment (Periodic) [SCAO Form MC 12] in the court that issued the original criminal case’s “case number.” The criminal case judge must sign the form. Then serve it ton the defendant’s employer (the garnishee). Serve the defendant, who has up to 14 days to file objections to the writ with the court. “Periodic” garnishment orders last for up to 91 days. If your restitution is still not fully paid, repeat the process by filing a new MC 12 form. There is no fee for filing the request and Writ for Garnishment. The Crime Victim’s Rights Act provides that the court shall not impose a fee on a victim or victim’s estate for enforcing an order of restitution. MCL 780.766 (20).
Some forms of income are exempt from garnishment, including the first $500 in savings accounts; IRAs; Social Security; SSI; AFDC; General Assistance benefits; unemployment compensation benefits; and workers’ compensation benefits.
FORMS & SELF-HELP INFO ARE AVAILABLE AT
GARNISH THE DEFENDANT’S CHECKING, SAVINGS, OR OTHER ACCOUNTS
The defendant’s checking, savings, or other asset accounts can be garnished for unpaid restitution. To collect these types of assets, file the Request and Writ for Garnishment (Non-Periodic) [SCAO Form MC 13] in the court that issued the Judgment of Sentence. Use the original criminal case’s “case number.” The criminal case judge must sign the form. You will need the defendant’s account number(s), social security number, etc. Then serve it on banking institutions (the garnishees) where the accounts are located. Use separate Form MC 13s for each banking institution. Serve the defendant, who has up to 14 days to file objections to the writ with the court. A “banking account” garnishment order is used once. If your restitution is still not fully paid, repeat the process by filing a new MC 13 form when you know or have good reason to believe that the bank account has been replenished.
There is no fee for the filing of the Request and Writ For Garnishment in the court. The Crime Victim’s Rights Act provides that the court shall not impose a fee on a victim or victim’s estate for enforcing an order of restitution. MCL 780.766 (20).
GARNISH THE DEFENDANT’S MICHIGAN INCOME TAX REFUND OR CREDIT
The defendant’s Michigan income tax refund or credit can be garnished for unpaid restitution. To collect this type of income, file the Request and Writ for Garnishment (Income Tax / Credit) [SCAO Form MC 52] in the court that issued the Judgment of Sentence. Use the original criminal case’s “case number.” The criminal case judge must sign the form. You will need the defendant’s social security number. Then serve it on Michigan Department of Treasury (the garnishee) with a $6 fee. Serve the defendant, who has up to 14 days to file objections to the writ with the court. An income tax garnishment order is used once. If your restitution is still not fully paid, repeat the process. File a new MC52 form for the next year’s income tax refund.
You may not garnish the defendant’s federal or local income tax refunds or credits.
There is no fee for filing of the Request and Writ For Garnishment in the court. The Crime Victim’s Rights Act provides that the court shall not impose a fee on a victim or victim’s estate for enforcing and order of restitution. MCL 780.766 (20).
SEIZE & SELL THE DEFENDANT’S ASSETS
To collect and sell physical assets, file a Request and Order to Seize Property form [SCAO Form MC19]. The criminal case judge reviews and signs the order. Serve it on the defendant. THEN serve it on a court-appointed officer (e.g., sheriff’s civil division). The court officer (not the victim) can seize the defendant’s property and sell it at auction. The proceeds are given to the victim(s). Excess proceeds are returned to the defendant.
Since a restitution order is in effect until it is fully satisfied, it can be collected from the assets of the defendant when he / she is alive, as well as from the estate of the defendant. To do so, file a Statement and Proof of Claim [SCAO Form PC 579] in the Probate Court of the County in which the defendant lives.
Postponement until a later date, at the defendant’s, judge’s, or Prosecuting Attorney’s request. Adjournments happen for many reasons: witnesses, attorneys or defendants have scheduling conflicts or are ill; an older case may be heard that day; necessary motions or legal issues have not been decided, etc.
A person who assists the victim with support, information, resources, etc.
The process of having a higher court review the lower court’s decisions and / or rulings.
The defendant is brought before the court and read the charges against him / her. The defendant may be asked to plead guilty, not guilty, or no contest. Bond may be set.
The Prosecuting Attorney’s decision to issue a criminal charge.
BAIL OR BOND
The purpose of bail or bond is to insure the defendant’s appearance for future court appearances, and to enhance public safety. Bail is generally an amount of money and / or conditions of release set by the court (e.g., no contact with victim).
Trial before a judge, without a jury.
The written document that states the criminal charges.
The person charged with the crime.
A crime for which a person may be sent to prison for more than one year.
A crime for which a person may be sentenced to not more than one year in jail.
Request for a certain ruling or decision on an issue related to a case.
A type of plea is used when the defendant cannot recall his criminal actions or may be sued civilly for his / her criminal conduct. Generally the police report, rather than the defendant’s verbal admissions to the judge make up the factual basis for the plea. The defendant is treated by a sentencing judge the same as if he was convicted via a guilty plea or trial verdict.
A deliberate lie or untruth regarding a material fact made under oath.
The defendant’s response to a criminal charge (guilty, not guilty or no contest).
An agreement between parties for the defendant to plead guilty or no-contest under certain terms and conditions (reducing / dismissing charge(s), agreeing to terms of sentence, etc.), subject to the judge’s approval.
A District Court hearing in felony cases to determine if there is probable cause to believe that a felony has been committed and that the defendant committed the crime.
A probation department’s review of a convicted offender’s personal and criminal background. The victim is also consulted on the impact the crime has had upon his / her life and what the victim feels the sentence should include. A report is prepared and read by the judge before sentencing.
An informal meeting between the Prosecutor and defendant or his / her attorney to resolve the case.
A sentence where a defendant’s life activities are supervised by the court.
Attorney who represents the People of the State of Michigan against a criminal defendant.
An amount of money, determined by the court, to be paid to a crime victim for property loss or injuries caused by the defendant’s criminal acts. Michigan crime victims have both constitutional and statutory rights to restitution.
A court order directing a person to be present at a time and place for a court hearing.
A person or entity who suffers direct physical, financial and / or emotional harm, or is threatened as a result of the commission of a crime.
To give up a right.
A court’s written order commanding police to bring a person before the court.
STEPS IN A CRIMINAL CASE
1 – A crime is reported.
2 – The police become involved.
- An investigation takes place.
- A report is prepared.
- The report is forwarded to the prosecutor.
3 – The prosecutor become involved and has three options:
- File a criminal complaint.
- Request further investigation.
- Decline prosecution.
Should a criminal complaint be filed, it will be either a misdemeanor or a felony and go thru the following steps:
4 – Arraignment – District Court.
5 – Pre-Trial Conference.
6 – Motions.
7 – Plea or Trial.
8 – Sentencing.
4 – Arraignment – District Court.
5 – Preliminary Examination.
6 – Bind over to Circuit Court.
7 – Arraignment – Circuit Court.
8 – Pre-Trial Conference.
9 – Motions.
10 – Plea or Trial.
11 – Sentencing.