 |
| Nothing to do with restitution. I just like horses. And rainbows. |
State v. Blake
Here’s another case from the wayback machine. We’ve got a little bit of a backlog. Are you interested in writing SCOV posts? If so, you could join us on this train we call the SCOVLawBlog. The only requirements are the ability to read supreme court decisions and boil them down (somewhat) succinctly into blog posts. Bonus points for being hilarious, writing in haiku (or other lyrical poem form, we aren’t picky), and having a pop culture reference for just about any moment. Interested? Get in touch!
Let’s turn to this case, because that’s why we’re all here.
Mr. Blake owned a house. In August of 2007 there was a fire at his house, and he subsequently made an insurance claim against his homeowners’ insurance. In the end, the insurance company paid out $115,994.74 in connection with the claim.
Mr. Blake then got charged with and convicted of filing a false insurance claim in connection with that same claim. He apparently also had a co-defendant, although there’s not a lot of information in the opinion about the co-defendant. A quick timeline might be helpful here:
2007– fire occurs, claim is made, some insurance payouts are made
2008– several insurance company payouts are made, Mr. Blake sues insurance company for additional payments owed under the policy & insurance company countersues
2009– Mr. Blake gets convicted of false claim
2010– Mr. Blake and the insurance company settle the civil suits and sign mutual releases
2014– criminal case co-defendant’s case resolves and co-defendant is ordered to pay restitution to the insurance company
Same time-ish– criminal court orders Mr. Blake also to pay restitution
2016– Mr. Blake moves to strike criminal restitution order, which is denied
2017– SCOV takes up the matter, and remands part of it to the trial court. Why? Read on!
Some criminal cases involve victims. And when that happens, the court is required to consider restitution to the victim. Restitution in criminal cases is governed by the restitution statute, which is found in the sentencing portion of the criminal code. It says the court “shall consider” restitution in sentencing in cases like this. Restitution isn’t meant to be a punishment. It’s meant to restore the victim in the case to where they were before the crime happened. Criminal restitution also isn’t meant to cover all the same things a victim could seek in a civil case; it only covers known uninsured losses.
I think the example I’ve used before has to do with a mailbox. Let’s suppose David Defendant is driving while impaired, and hits my mailbox. It costs me $100 to purchase and put up a new mailbox. I have homeowners’ insurance, but my deductible is $500, so the mailbox wouldn’t be covered. If David is convicted, as part of his sentence the court is required to consider restitution to me in order to fix my mailbox situation.
I never become a party to the criminal case. It’s up to the State’s Attorney to bring my restitution information forward and to prove that I’m owed $100 for the mailbox. Now, I could say, “you know what? My old mailbox was rusty and the door didn’t close right for three years, and the post was rotting, so I seized upon this opportunity to fix the situation – no need to repay me since I probably needed it anyway.” And that’s fine. I can choose to do that, and I can choose to say I want zero dollars in restitution.
But that doesn’t change that the court has an obligation under the statute to considerrestitution in this case. And if the parties negotiated an agreement that David Defendant would get some resolution and that he wouldn’t have to pay restitution, that doesn’t completely work, either, because the way the statute is written the parties aren’t able to waive restitution. It also doesn’t mean the court has to impose a restitution amount, it just means the court is required to consider it.
Mr. Blake’s situation was a little different than the broken mailbox. Mr. Blake had been paid over a hundred thousand dollars as a result of a false insurance claim and got charged criminally for that. The insurance company is the victim here, because it paid out money in response to Mr. Blake’s claim. At the time of Mr. Blake’s sentencing, the court had to consider restitution to the insurance company.
But in the meantime, Mr. Blake and the insurance company had engaged in cross-litigation in civil court and had come to some sort of settlement. And as a part of their settlement they each signed releases saying that neither party would pursue anything further as a result of the claim.
Mr. Blake pretty reasonably believed that as a result of this that the criminal court wouldn’t be able to order restitution since the repayment matter was taken care of in another agreement.
Unfortunately, he wasn’t correct about this. Since restitution is a part of sentencing in a criminal case, and since the statute forces the court to consider restitution, he is stuck with having a restitution hearing. And as much as the insurance company may say they’re satisfied with the situation and don’t need criminal restitution, they’re not a party and they don’t get to waive the court’s requirement to consider restitution.
Rest assured this doesn’t mean that the insurance company gets paid twice. It just means the court is required to consider the question. Suppose they show up for the hearing and it turns out based on the settlement or based on other information the amount required to be paid is different than what people originally thought – that’s fine – but the court has to consider it. Or, the court could, after hearing evidence, order that criminal restitution is zero, based on whatever the other agreement was. We don’t know how it’s going to come out in the end. We do know the court has to consider it.
Now I can see where this might make a mess, litigation-wise. Suppose an insurance company gets a civil judgment and then records it so there’s a lien on someone’s property (I am spitballing here; if I’m wrong about how this works I’m sure you’ll tell me). Then there’s also a criminal restitution judgment order for the same amount of money for the same incident. Suppose the defendant doesn’t pay on either of them. At that point the lienholder could, I suppose, try to foreclose on the property to get paid. Also, if the separate restitution order is not getting paid, the State of Vermont Restitution Unit could move to enforce that judgment. That might cause competing litigation; I’m not sure which gets prioritized. The statute is clear that a victim is not permitted double recovery for uninsured losses. Maybe we’ll cross this bridge another time.
Anyway, long story short – regardless of a civil release, the court in a criminal case is required to at least consider restitution. There’s a whole discussion about what “consider” means. I think it means here the court is going to hold a hearing, take evidence, and make whatever necessary findings and order spring from the evidence. I’d call that “doing court stuff.”
The court is also required to make findings about a defendant’s ability to pay. In this case, that piece got remanded back to the trial court because those findings weren’t made.
Comments
Post a Comment