29-2281. Restitution; determination of amount; fines and costs; manner and priority of payment.
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/ne/chapter-29/29-2281A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(1)To determine the amount of restitution, the court may hold a hearing at the time of sentencing. The amount of restitution shall be based on the actual damages sustained by the victim and shall be supported by evidence which shall become a part of the court record. The court shall consider the defendant's earning ability, employment status, financial resources, and family or other legal obligations and shall balance such considerations against the obligation to the victim. In considering the earning ability of a defendant who is sentenced to imprisonment, the court may receive evidence of money anticipated to be earned by the defendant during incarceration.
(2)A person may not be granted or denied probation or parole either solely or primarily due to his or her financial resources or ability or inability to pay restitution.
(3)The court may order that restitution be made immediately, in specified installments, or within a specified period of time not to exceed five years after the date of judgment or defendant's final release date from imprisonment, whichever is later.
(4)If, in addition to restitution, a defendant is ordered to pay fines and costs as part of the judgment and the defendant fails to pay the full amount owed, funds shall first be applied to a restitution obligation with the remainder applied towards fines and costs only when the restitution obligation is satisfied in full.
(5)Restitution payments shall be made through the clerk of the court ordering restitution. The clerk shall maintain a record of all receipts and disbursements.
1. Factors to consider
2. Miscellaneous
1. Factors to consider
The listed factors of this section are neither exhaustive nor mathematically applied, and the court's ultimate determination of whether restitution should be imposed is a matter of discretion. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020).
This section does not require setting forth factors to be considered in determining whether to order restitution and does not require a court to specifically articulate that it has considered factors or make explicit findings, disapproving State v. St. Cyr, 26 Neb. App. 61, 916 N.W.2d 753 (2018), and State v. Mick, 19 Neb. App. 521, 808 N.W.2d 663 (2012). State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020).
Before restitution can be properly ordered, the trial court must consider
(1)whether restitution should be ordered,
(2)the amount of actual damages sustained by the victim of a crime, and
(3)the amount of restitution a criminal defendant is capable of paying. An evidentiary hearing is required to support a restitution order under this section. Restitution shall be ordered after a hearing and should be based on evidence of both actual damages and the defendant's ability to pay. State v. Holecek, 260 Neb. 976, 621 N.W.2d 100 (2000).
Before restitution can be properly ordered, the trial court must consider:
(1)Whether restitution should be ordered,
(2)the amount of actual damages sustained by the victim of a crime, and
(3)the amount of restitution a criminal defendant is capable of paying. The amount of actual damages and the amount of restitution a criminal defendant is capable of paying shall be based on sworn information which may be documentary in nature. For purposes of restitution, the court's consideration of "the defendant's earning ability, employment status, financial resources, and family or other legal obligations" is mandatory. The plain language of this section and the case law require appropriate sworn documentation in the record of both the actual damages sustained by the victim and the defendant's ability to pay restitution. State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999).
Before restitution can be properly ordered, the trial court must consider
(1)whether restitution should be ordered,
(2)the amount of actual damages sustained by the victim of a crime, and
(3)the amount of restitution a criminal defendant is capable of paying. State v. Hosack, 12 Neb. App. 168, 668 N.W.2d 707 (2003).
A victim's unsworn and uncorroborated statements in a presentence report fall short of the requirement that a victim's actual damages be supported by evidence in the record. State v. McGinnis, 2 Neb. App. 77, 507 N.W.2d 46 (1993).
2. Miscellaneous
Actual damages do not require an assessment of the damaged property's prior fair market value when it can be repaired to its former condition. State v. Street, 306 Neb. 380, 945 N.W.2d 450 (2020).
In imposing a sentence, the court must state the precise terms of the sentence. Such requirement of certainty and precision applies to criminal sentences containing restitution orders, and a court's restitution order must inform the defendant whether the restitution must be made immediately, in specified installments, or within a specified period of time, not to exceed 5 years, as required under this section. State v. Esch, 290 Neb. 88, 858 N.W.2d 219 (2015).
If the sentencing court decides that a hearing is necessary to determine the amount of restitution, that hearing must be held at the time of sentencing. State v. Campbell, 247 Neb. 517, 527 N.W.2d 868 (1995).
A sentencing court is not limited by the maximum criminal fine authorized for the offense in ordering a person to make restitution as a condition of probation. State v. Stueben, 240 Neb. 170, 481 N.W.2d 178 (1992).
Record lacked sufficient documentation to support victim's assertion of lost wages. State v. McLain, 238 Neb. 225, 469 N.W.2d 539 (1991).
Despite the existence of a plea agreement involving restitution, the trial court still must give meaningful consideration to the defendant's ability to pay the agreed-upon restitution. State v. Mick, 19 Neb. App. 521, 808 N.W.2d 663 (2012).
Trial court's failure to inform defendant whether restitution must be made immediately, in specified installments, or within a specified time not to exceed 5 years was plain error. State v. Mettenbrink, 3 Neb. App. 7, 520 N.W.2d 780 (1994).