The blog is back. Took a few weeks off to move but now we are back and we are talking about restitution. But not just restitution but the timing to make your restitution claim. Edge of the seat type of blogging out of the break. Restitution is out of pocket losses incurred by a victim of a crime. For example, if you were a victim of an indecent exposure and you could barely see what was being exposed so you had to go to the eye doctor to get your vision checked — you could ask for the out of pocket deductible for the eye exam. But you would not get damages from pain and suffering from the “poof” test. I hate the poof. So out of pocket only. The MN COA published a case named
Restitution is out of pocket losses incurred by a victim of a crime. For example, if you were a victim of an indecent exposure and you could barely see what was being exposed so you had to go to the eye doctor to get your vision checked — you could ask for the out of pocket deductible for the eye exam. But you would not get damages from pain and suffering from the “poof” test. I hate the poof. So out of pocket only. The MN COA published a case named State v. Howard.
“An offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested.” Minn. Stat. § 611A.045, subd. 3(b). “Under Minn. Stat. § 611A.045, subd. 3(a), the offender bears the initial burden of production to challenge a restitution request.” State v. Smith, 876 N.W.2d 310, 336 (Minn. 2016). “The timing of that burden is plain and unambiguous.” Id. “The affidavit must be served on the prosecuting attorney and the court at least five business days before the hearing.” Id. (emphasis and quotation omitted). “[I]f the defendant challenges the restitution amount sought, the statute requires the court to conduct a restitution hearing.” State v. Willis, 898 N.W.2d 642, 648 n.8 (Minn. 2017) (citing Minn. Stat. § 611A.045, subd. 3 (2016)).
Here, Howard gave his 30-day notice but the State argued that the Howard did not come close to meeting his burden of production with a detailed affidavit. Howard filed an affidavit that by all accounts was an embarrassment to all affidavits. The Court agreed and dismissed the restitution claim. Howard claimed that he did not have to give detailed information until at least five days before the hearing so the Court was wrong to dismiss his petition. His lame affidavit could easily be fixed by those five days before the hearing. Sort of like Ali’s “rope a dope” this was a “baited affidavit.” Lull the State into thinking they don’t know what they are doing and then “boom” hit them with the affidavit that is so detailed it will be the equivalent of a “mic drop” affidavit. The COA said the DC was premature in dismissing this restitution and Howard will live to fight another day.
So the lesson here is simple.
If you want to shroud your restitution claim in secrecy, hit them with a generic motion for a hearing within the 30 days (usually sentencing) with a generic baited affidavit only to blow their minds with an affidavit soaked in detail five business days before.
