Saturday, January 24, 2009

Restitution In Criminal Cases

Restitution in Criminal Defense Appeals, D.U.I., Federal Criminal Defense, Federal Criminal Defense Appeals, Juvenile Delinquency, Juvenile Delinquency AppealsIf your holiday season always seems to go by too fast, like ours do. Just a few of the activities common to the holiday are spending time with loved ones, relaxing away from the work environment, and breaking out the winter clothes. Also on this list, of course, is gift giving. With the hustle and bustle past, chances are you have a reminder of the holidays in the form of one or more credit card bills. Now that all of your creditors are looking for your restitution, what better topic to discuss than restitution in criminal cases.

There are numerous issues in proving restitution in a criminal case. Florida law provides that "in addition to any criminal punishment imposed, the court shall order the defendant to make restitution to the victim for (1) damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution; and (2) damage or loss caused directly or indirectly by the defendant’s offense." Although restitution can be an available option, it must first be proven by the state.

The state must satisfy two tests before restitution can be imposed on a criminal defendant. In Schuette v. State, 822 So.2d 1275 (Fla. 2002), the Florida supreme court established both the causal relationship test and the significant relationship test.

Schuette explained that, "To compel a defendant to pay restitution, the State has the burden of establishing causation, as well as the burden of demonstrating the amount of loss sustained by the victim as a result of the offense. Further, the State must establish both causation and the amount of loss or damages by a preponderance of the evidence." Id. at 1278-1279. If the causal relationship test is satisfied, the state must then prove the significant relationship test before restitution can be awarded.

The significant relationship test involves the state proving that the defendant’s conduct was the proximate cause of the particular harm. Schuette pointed out that, "The victim should be entitled to recover damages through criminal restitution if the causal connection between the criminal offense and the damage is comparable to that proximate causation which would allow the victim to relate comparable damages to a wrongful act in tort." Id. at 1282. Thus, the act committed by the defendant must be reasonably foreseeable to result in the type of harm sustained by the victim.

In Molter v. State, 29 Fla. L. Weekly D 2590 (2nd DCA Nov. 17, 2004), the court analyzes several aspects of restitution. First, an objection as to the amount of restitution mandates a hearing on the issue. Second, a prosecutor’s unsworn assertions about the total value of items is not evidence and can not be used to establish value. Instead, there must be record evidence sufficient to support the state’s preponderance burden. Finally, since restitution serves as a form of rehabilitation, deterrence, and retribution and is not just for compensation, fair market value may not always be adequate. In this case, the trial court had assessed family heirlooms at higher than market value.

Restitution is not awarded simply because the defendant is convicted of a qualifying offense. The state must first prove that restitution is appropriate. If restitution is requested from the state, it is the job of the defense attorney to protect the financial interests of the defendant by demanding proper record proof of the causal relationship and the significant relationship tests.

Wednesday, January 14, 2009

Statement Of Clients's Rights For Contingency Fee Arrangements

Client's Rights for Personal Injury, Automobile Accidents, Motorcycle Accidents, Premise Liability, Wrongful Death, P.I.P. LitigationMake sure that before you, the prospective client, arrange a contingent fee agreement with any lawyer, you understand this statement of your rights as a client. This statement is not a part of the actual contract between you and your lawyer, but, as a prospective client, you should be aware of your rights:

1. There is no legal requirement that a lawyer charge a client a set fee or a percentage of money recovered in a case. You, the client, have the right to talk with your lawyer about the proposed fee and to bargain about the rate or percentage as in any other contract. If you do not reach an agreement with 1 lawyer you may talk with other lawyers.

2. Any contingent fee contract must be in writing and you have 3 business days to reconsider the contract. You may cancel the contract without any reason if you notify your lawyer in writing within 3 business days of signing the contract. If you withdraw from the contract within the first 3 business days, you do not owe the lawyer a fee although you may be responsible for the lawyer’s actual costs during that time. If your lawyer begins to represent you, your lawyer may not withdraw from the case without giving you notice, delivering necessary papers to you, and allowing you time to employ another lawyer. Often, your lawyer must obtain court approval before withdrawing from a case. If you discharge your lawyer without good cause after the 3-day period, you may have to pay a fee for work the lawyer has done.

3. Before hiring a lawyer, you, the client, have the right to know about the lawyer’s education, training, and experience. If you ask, the lawyer should tell you specifically about the lawyer’s actual experience dealing with cases similar to yours. If you ask, the lawyer should provide information about special training or knowledge and give you this information in writing if you request it.

Friday, January 2, 2009

Michael Maddux, P.A. can help you!

Let Michael P. Maddux, P.A. help you now!
Michael Maddux, P.A. can help you State Criminal Defense, FL Statute 3.850, State Criminal Defense Appeals, Federal Criminal Defense, D.U.I., Formal Review Hearings, Federal Criminal Defense Appeals, Juvenile Delinquency, Juvenile
Delinquency Appeals, Juvenile Dependency, Juvenile Dependency Appeals,
Personal Injury, Automobile Accidents, Motorcycle Accidents, Premise
Liability, Wrongful Death, P.I.P. Litigation