CHAPTER 413
S.P. 274 - L.D. 882
An Act to Require Defendants to Pay Restitution, Monetarily or Through Work Restitution
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 17-A MRSA §1325, sub-§1, ¶C, as enacted by PL 1977, c. 455, §3, is amended to read:
C. The present and future financial ability capacity of the offender to pay restitution.
Sec. 2. 17-A MRSA §1325, sub-§2, ¶D, as enacted by PL 1977, c. 455, §3, is amended to read:
D. When the amount and method of payment of monetary restitution or the performance of service restitution will create creates an excessive financial hardship on the offender or dependent of the offender. In making this determination, all relevant factors shall must be considered, including, but not limited to the following:
(1) The number of the offender's dependents;
(2) The usual minimum living expenses of the offender and his the offender's dependents;
(3) The special needs of the offender and his the offender's dependents, including necessary travel expense to and from work;
(4) The offender's present income and potential future earning capacity; and
(5) The offender's resources, from whatever source.
Sec. 3. 17-A MRSA §1325, sub-§4 is enacted to read:
4. Burdens of proof. An offender who asserts a present or future incapacity to pay restitution has the burden of proving the incapacity by a preponderance of the evidence. On appeal of a restitution order, the offender has the burden of demonstrating that the incapacity was proven as a matter of law.
Sec. 4. 17-A MRSA §1328, as enacted by PL 1977, c. 455, §3, is repealed and the following enacted in its place:
If, in any judicial proceeding following conviction, a court issues a final judgment invalidating the conviction, the judgment may include an order that any or all of a restitution payment that the convicted person paid pursuant to the sentence for that conviction be returned to the convicted person.
Sec. 5. 17-A MRSA §1328-A is enacted to read:
§1328-A. Modification of restitution
A convicted person who can not make restitution payments in the manner ordered by the court shall move the court for a modification of the time or method of payment or service to avoid a default. The court may modify its prior order to reduce the amount of each installment or to allow additional time for payment or service.
Sec. 6. 17-A MRSA §1329, sub-§2, as amended by PL 1989, c. 502, Pt. D, §15, is further amended to read:
2. Reports. A probation officer having knowledge of a default in restitution by an offender shall report the default to the office of the prosecutor attorney for the State. A prosecutor An attorney for the State having knowledge of a default in restitution by an offender shall report the default to the court. If the restitution was a condition of probation, the attorney for the State may file a motion to enforce payment of restitution or, with the written consent of the probation officer, a motion to revoke probation under section 1205. If the restitution was not a condition of probation, the attorney for the State may file a motion to enforce payment of restitution.
Sec. 7. 17-A MRSA §1329, sub-§§3, 4 and 5 are enacted to read:
3. Motion to enforce payment of restitution. Either the attorney for the State or the court may initiate a motion to enforce payment of restitution. Notification for the hearing on the motion must be sent by regular mail to the offender's last known address. If the offender does not appear for the hearing after proper notification has been sent, the court may issue a bench warrant.
A. Unless the offender shows by a preponderance of the evidence that the default was not attributable to an intentional or knowing refusal to obey the court's order or to a failure on the offender's part to make a good-faith effort to obtain the funds required to make payment, the court shall find that the default was unexcused and may commit the offender to the custody of the sheriff until all or a specified part of the restitution is paid. The length of confinement in a county jail for unexcused default must be specified in the court's order and may not exceed one day for every $5 of unpaid restitution or 6 months, whichever is shorter. An offender committed for nonpayment of restitution is given credit toward the payment of restitution for each day of confinement that the offender is in custody, at the rate specified in the court's order. The offender is also given credit for each day that the offender has been detained as the result of an arrest warrant issued pursuant to this section. An offender is responsible for paying any restitution remaining after receiving credit for confinement and detention. A default on the remaining restitution is also governed by this section.
B. If it appears that the default is excusable, the court may give the offender additional time for payment or may reduce the amount of each installment.
4. Collection. Upon any default, execution may be levied and other measures authorized for the collection of unpaid civil judgments may be taken to collect the unpaid restitution. A levy of execution does not discharge an offender confined to a county jail under subsection 3 for unexcused default until the full amount of the restitution has been collected.
5. Organizations. When restitution is imposed on an organization, the person or persons authorized to make disbursements from the assets of the organization shall pay the restitution from the organization's assets. Failure to do so may subject the person or persons to court action pursuant to this section.
Effective September 19, 1997, unless otherwise indicated.
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