Restitution and Civil Judgments

Last week the court of appeals decided State v. Swann, concluding (among other things) that a prosecutor's statement alone is insufficient to support a restitution award. A lot of recent cases have reached the same conclusion - State v. Replogle, 181 N.C. App. 579 (2007), State v. Calvino, 179 N.C. App. 219 (2006), and State v. Shelton, 167 N.C. App. 225 (2004), to name a few. Though the restitution statute specifically says the "court is not required to make findings of fact or conclusions of law" as to the amount of restitution, G.S. 15A-1340.36(a), a restitution award must be supported by some evidence adduced at trial or sentencing. Form AOC-CR-611 guides the parties through the proper procedure - including reference to the requirement that the court consider "information presented by the parties" as to the damage caused and the defendant's ability to pay. Speaking of restitution, something I am asked about from time to time is whether a criminal restitution order can be converted into a civil judgment. I gather this sometimes happens at a hearing related to probation, where the court finds that probation is terminated, with any restitution still owed to be docketed as a civil judgment. An award of restitution in a criminal case is no bar to a victim's right to bring a civil action against the defendant based on the same conduct. G.S. 15A-1340.37. It is by no means a given, however, that a restitution award and a related civil judgment will be the same. Different [...]