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Unofficial Opinion 95-19

Unofficial Opinion 95-19

August 31, 1995
To: 

District Attorney
Augusta Judicial Circuit

Re: 

A sentencing court may not require an offender to make restitution on those counts of a multi-count indictment which are dismissed pursuant to a negotiated plea agreement. However, where an offender voluntarily agrees to make restitution in a certain amount, even if such amount exceeds the victim's "damages," the sentencing court may incorporate that agreement into its restitution order.

You have requested my advice on whether a sentencing court may, as a condition of probation, require an offender to make restitution on those counts of a multi-count indictment which are dismissed pursuant to a negotiated plea agreement. It is my unofficial opinion that a sentencing court may not require an offender to make restitution on those counts of a multi-count indictment which are dismissed pursuant to a negotiated plea agreement; however, where an offender voluntarily agrees to make restitution in a certain amount, even if such amount exceeds the victim's "damages," the sentencing court may incorporate that agreement into its restitution order.

Official Code of Georgia Annotated § 17-10-1(a)(1) provides, in pertinent part, that:

Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after a presentence hearing, . . . [t]he judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, . . . .

Where a sentencing court grants probation, it may, as one of the terms and conditions of probation, require the offender to make restitution for the damage or loss caused by his offense. O.C.G.A. §§ 17-14-3, 42-8-35(7). Georgia's statutory scheme dealing with restitution is set forth in O.C.G.A. §§ 17-14-1 et seq., and O.C.G.A. § 17-14-9 provides that "[t]he amount of restitution ordered may be equal to or less than, but not more than, the victim's damages." (Emphasis added.) See Morrison v. State, 181 Ga. App. 440 (1987). The term "damages" is separately defined in O.C.G.A. § 17-14-2(2), which states:

"Damages" means all damages which a victim could recover against an offender in a civil action, including a wrongful death action, based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium.

(Emphasis added.)

Thus, because an offender can be sentenced only as to those offenses for which there is a verdict or plea of guilty (O.C.G.A. § 17-10-1(a)(1)), a sentencing court may require an offender to make restitution only as to offenses for which he has been convicted. See 1987 Op. Att'y Gen. U87-8 ("A restitution order, by definition, can only be entered pursuant to a criminal conviction"); O.C.G.A. § 17-14-1 ("It is declared to be the policy of this state that restitution to their victims by those found guilty of crimes is a primary concern of the criminal justice system") (emphasis added); and O.C.G.A. § 17-14-2(4) ("'Offender' means any natural person who has been placed on probation . . . or sentenced for any crime" (emphasis added)).

Although I find no Georgia cases which squarely address the question posed in your request for advice, several appellate decisions support the foregoing conclusion. For example, in Bottoms v. State, 194 Ga. App. 862 (1990), the offender pleaded guilty to three counts of theft by receiving as to certain items of property that were stolen in a series of burglaries. While the offender was not charged with having committed those burglaries, the trial court ordered her to make restitution for all of the stolen property instead of limiting the amount of restitution to those items which formed the basis of the charges against her.

The Court of Appeals reversed, holding that, under O.C.G.A. § 17-14-2(2), "the trial court was not authorized to order appellant to make restitution as to items that she was not herself charged with having stolen." Bottoms, 194 Ga. App. at 863. Although the Court used the term "charged," it is clear that there must be a conviction on the charge before the court can order restitution because an offender cannot be sentenced except as to offenses for which there is a verdict or plea of guilty. See O.C.G.A. § 17-10-1(a)(1); Jackson v. State, 198 Ga. App. 261, 263-64 (1990); 1987 Op. Att'y Gen. U87-8.

Similarly, in Robinson v. State, 169 Ga. App. 763 (1984), a case upon which the Court in Bottoms expressly relied, the Court of Appeals reversed that portion of the trial court's restitution order requiring the offender to make restitution as to an offense with which she was not charged. The Court held that "[e]ven if the trial court was aware of a charge against appellant relating to such a theft, it is error for a trial court to consider untried charges against a defendant on sentencing." Id. at 763. Again, in addition to the filing of charges or an indictment against the offender, there must be a conviction before the court can order restitution.

Recently, the United States Supreme Court addressed the very question posed in your request for advice when it interpreted a similarly-worded provision in the federal counterpart to Georgia's restitution statutes. In Hughey v. United States, 495 U.S. 411 (1990), the offender was indicted on multiple counts. In exchange for the Government's agreement to dismiss the remaining counts, he pled guilty to one count of use of an unauthorized MBank credit card issued to Godfrey. The District Court, however, ordered him to make restitution for the total losses which MBank sustained as a result of his alleged theft and use of credit cards belonging to all MBank cardholders.

The Supreme Court, however, held that the plain language of 18 U.S.C. § 3579 (recodified at 18 U.S.C. § 3663), establishes "that Congress intended restitution to be tied to the loss caused by the offense of conviction" and, therefore, restitution cannot be ordered as to untried charges. Hughey, 495 U.S. at 416-18. The relevant statutory language "provides that 'a defendant convicted of an offense' may be ordered to 'make restitution to any victim of such offense.'" Id. at 415-16. Similarly, reading O.C.G.A. §§ 17-14-2(2) and 17-14-9 together, Georgia's restitution statutes provide that an offender cannot be ordered to make restitution unless such order is "based on the same act or acts for which the offender is sentenced."

While the Government argued that limiting restitution to losses caused by the offense of conviction undermines victims' ability to recover fully for their losses since prosecutors "often drop charges of which a defendant may be guilty in exchange for a plea to one or more of the other charges," the Court rejected that argument because "[n]othing in the statute suggests that Congress intended to exempt victims of crime from the effects of such a bargaining process." Hughey, 495 U.S. at 421. In contrast, the Georgia legislature enacted O.C.G.A. § 17-14-11, which expressly authorizes a victim to pursue a civil action against the offender even as to those offenses for which there is no conviction. See Garrett v. State, 175 Ga. App. 400 (1985).

Thus, although a sentencing court lacks the authority to require an offender to make restitution as to offenses for which he has not been convicted, for the reasons set forth below, it is also my unofficial opinion that an offender may, as part of a plea agreement, voluntarily agree to make restitution in any amount, and the court can incorporate that agreement into its restitution order.

In Westmoreland v. State, 192 Ga. App. 173, 176-77 (1989), the Court of Appeals held that, where an offender voluntarily agrees to make restitution in a certain amount -- which may include sums for damages or losses resulting from offenses for which he has not been indicted -- a sentencing court can make that agreement a part of its restitution order and, based on the theory that any alleged error was induced by the offender's agreement or acquiescence, the offender is precluded from challenging the order. Accord Johnson v. State, 157 Ga. App. 155 (1981); Fong v. State, 149 Ga. App. 456 (1979). See also O.C.G.A. § 17-14-13 and 1987 Op. Att'y Gen. U87-8 (where such an agreement is incorporated into a restitution order, it is enforceable as a civil judgment and as an order of the court).

Indeed, the General Assembly appears to have contemplated such agreements in enacting O.C.G.A. § 17-14-7, which provides that:

Any offender may offer a restitution plan to the ordering authority. If a plan is offered, it shall be the duty of the ordering authority to consider the factors stated in Code Section 17-14-10 and to make the plan part of a restitution order if acceptable to the ordering authority.

(Emphasis added.) See Garrett, 175 Ga. App. at 401 (noting that "the restitution mechanism is an attempt to avoid the necessity of a separate civil action and to determine the amount of loss caused by the criminal act in the usually earlier criminal proceedings rather than in a second and more protracted civil suit").

In summary, it is my unofficial opinion that a sentencing court may not require an offender to make restitution on those counts of a multi-count indictment which are dismissed pursuant to a negotiated plea agreement; however, it is also my unofficial opinion that, where an offender voluntarily agrees to make restitution in a certain amount, even if such amount exceeds the victim's "damages," the sentencing court may incorporate that agreement into its restitution order.

Prepared by:

MATTHEW P. STONE
Assistant Attorney General