If the restitution ordered by the court is not made within the time period
specified, the court may continue the restitution order through the duration
of the civil judgment provision set forth in subsection (5) and as provided in
s. 55.10.
(4) If a defendant is placed on probation or paroled, complete
satisfaction of any restitution ordered under this section shall be a
condition of such probation or parole. The court may revoke probation, and
the Parole Commission may revoke parole, if the defendant fails to comply with
such order.
(5) An order of restitution may be enforced by the state, or by a
victim named in the order to receive the restitution, in the same manner as a
judgment in a civil action. The outstanding unpaid amount of the order of
restitution bears interest in accordance with s. 55.03, and, when properly
recorded, becomes a lien on real estate owned by the defendant. If civil
enforcement is necessary, the defendant shall be liable for costs and
attorney's fees incurred by the victim in enforcing the order.
(6)
(a) The court, in determining whether to order restitution and the
amount of such restitution, shall consider the amount of the loss sustained by
any victim as a result of the offense.
(b) The criminal court, at the time of enforcement of the restitution
order, shall consider the financial resources of the defendant, the present
and potential future financial needs and earning ability of the defendant and
his dependents, and such other factors which it deems
appropriate.
(7) Any dispute as to the proper amount or type of restitution
shall be resolved by the court by the preponderance of the evidence. The
burden of demonstrating the amount of the loss sustained by a victim as a
result of the offense is on the state attorney. The burden of demonstrating
the present financial resources and the absence of potential future financial
resources of the defendant and the financial needs of the defendant and his
dependents is on the defendant. The burden of demonstrating such other
matters as the court deems appropriate is upon the party designated by the
court as justice requires.
(8) The conviction of a defendant for an offense involving the
act giving rise to restitution under this section shall estop the defendant
from denying the essential allegations of that offense in any subsequent civil
proceeding. An order of restitution hereunder will not bar any subsequent
civil remedy or recovery, but the amount of such restitution shall be set off
against any subsequent independent civil recovery.
(9) When a corporation or unincorporated association is ordered
to make restitution, the person authorized to make disbursements from the
assets of such corporation or association shall pay restitution from such
assets, and such person may be held in contempt for failure to make such
restitution.
(10)
(a) Any default in payment of restitution may be collected by any
means authorized by law for enforcement of a judgment.
(b) The restitution obligation is not subject to discharge in
bankruptcy, whether voluntary or involuntary, or to any other statutory or
common-law proceeding for relief against creditors.
(11)
(a) The court may order the clerk of the court to collect and
dispense restitution payments in any case.
(b) The court may order the Department of Corrections to collect and
dispense restitution and other payments from persons remanded to its custody
or supervision.
(12)
(a) Issuance of income deduction order with an order for
restitution.
1. Upon the entry of an order for restitution, the court shall enter
a separate order for income deduction if one has not been entered.
2. The income deduction order shall direct a payor to deduct from
all income due and payable to the defendant the amount required by the court
to meet the defendant's obligation.
3. The income deduction order shall be effective so long as the
order for restitution upon which it is based is effective or until further
order of the court.
4. When the court orders the income deduction, the court shall
furnish to the defendant a statement of his rights, remedies, and duties in
regard to the income deduction order. The statement shall state:
a. All fees or interest which shall be imposed.
b. The total amount of income to be deducted for each pay
period.
c. That the income deduction order applies to current and
subsequent payors and periods of employment.
d. That a copy of the income deduction order will be served on the
defendant's payor or payors.
e. That enforcement of the income deduction order may only be
contested on the ground of mistake of fact regarding the amount of restitution
owed.
f. That the defendant is required to notify the clerk of court
within 7 days after changes in the defendant's address, payors, and the
addresses of his payors.
(b) Enforcement of income deduction orders.
1. The clerk of court or probation officer shall serve an income
deduction order and the notice to payor on the defendant's payor unless the
defendant has applied for a hearing to contest the enforcement of the income
deduction order.
2.
a. Service by or upon any person who is a party to a proceeding
under this subsection shall be made in the manner prescribed in the Florida
Rules of Civil Procedure for service upon parties.
b. Service upon the defendant's payor or successor payor under this
subsection shall be made by prepaid certified mail, return receipt requested,
or in the manner prescribed in chapter 48.
3. The defendant, within 15 days after having an income deduction
order entered against him, may apply for a hearing to contest the enforcement
of the income deduction order on the ground of mistake of fact regarding the
amount of restitution owed. The timely request for a hearing shall stay the
service of an income deduction order on all payors of the defendant until a
hearing is held and a determination is made as to whether the enforcement of
the income deduction order is proper.
4. The notice to payor shall contain only information necessary for
the payor to comply with the income deduction order. The notice shall:
a. Require the payor to deduct from the defendant's income the
amount specified in the income deduction order and to pay that amount to the
clerk of court.
b. Instruct the payor to implement the income deduction order no
later than the first payment date which occurs more than 14 days after the
date the income deduction order was served on the payor.
c. Instruct the payor to forward within 2 days after each payment
date to the clerk of court the amount deducted from the defendant's income and
a statement as to whether the amount totally or partially satisfies the
periodic amount specified in the income deduction order.
d. Specify that, if a payor fails to deduct the proper amount from
the defendant's income, the payor is liable for the amount the payor should
have deducted plus costs, interest, and reasonable attorney's fees.
e. Provide that the payor may collect up to $5 against the
defendant's income to reimburse the payor for administrative costs for the
first income deduction and up to $2 for each deduction thereafter.
f. State that the income deduction order and the notice to payor
are binding on the payor until further notice by the court or until the payor
no longer provides income to the defendant.
g. Instruct the payor that, when he no longer provides income to
the defendant, he shall notify the clerk of court and shall also provide the
defendant's last known address and the name and address of the defendant's new
payor, if known, and that, if the payor violates this provision, the payor is
subject to a civil penalty not to exceed $250 for the first violation or $500
for any subsequent violation.
h. State that the payor shall not discharge, refuse to employ, or
take disciplinary action against the defendant because of an income deduction
order and shall state that a violation of this provision subjects the payor to
a civil penalty not to exceed $250 for the first violation or $500 for any
subsequent violation.
i. Inform the payor that, when he receives income deduction orders
requiring that the income of two or more defendants be deducted and sent to
the same clerk of court, he may combine the amounts that are to be paid to the
depository in a single payment as long as he identifies that portion of the
payment attributable to each defendant.
j. Inform the payor that if the payor receives more than one income
deduction order against the same defendant, he shall contact the court for
further instructions.
5. The clerk of court shall enforce income deduction orders against
the defendant's successor payor who is located in this state in the same
manner prescribed in this subsection for the enforcement of an income
deduction order against an original payor.
6. A person may not discharge, refuse to employ, or take
disciplinary action against an employee because of the enforcement of an
income deduction order. An employer who violates this provision is subject to
a civil penalty not to exceed $250 for the first violation or $500 for any
subsequent violation.
7. When a payor no longer provides income to a defendant, he shall
notify the clerk of court and shall provide the defendant's last known address
and the name and address of the defendant's new payor, if known. A payor who
violates this provision is subject to a civil penalty not to exceed $250 for
the first violation or $500 for a subsequent
violation.
History: s. 1, ch. 77-150; s. 288, ch. 79-400; s. 5, ch. 84-363; s. 2, ch. 88-96;
s. 38, ch. 88-122; s. 10, ch. 89-526; s. 2, ch. 92-107; s. 1, ch. 93-37; s. 3,
ch. 93-69; s. 19, ch. 94-342; s. 1, ch. 95-160.
