Is restitution permissible?

Restitution is a criminal punishment but, if authorized for a specific offense, is permissible for a Class 3 misdemeanor under the exception in new G.S. 15A-1340.23(d). For example, if a defendant is convicted of a worthless check offense in violation of G.S. 14-107, whether a Class 3 misdemeanor or a higher class of offense, the court may require the defendant to make restitution to the victim as provided in G.S. 14-107(e).

For offenses for which restitution is not specifically authorized, the authority to order restitution is not as clear. G.S. 15A-1340.34 governs restitution generally. Subsection (b) states that the sentencing court must order restitution if the offense is subject to the Crime Victims’ Rights Act (G.S. 15A-830 through G.S. 15A-841). No Class 3 misdemeanors are subject to the Crime Victims’ Rights Act. Subsection (c) of G.S. 15A-1340.34 states that for other offenses the court may order restitution “in addition to any other penalty authorized by law.” This general provision may or may not be sufficient to authorize restitution because new G.S. 15A-1340.23(d) allows a punishment other than a fine only if provided for a “specific offense.”

Assuming restitution is permissible, a restitution order may be difficult to enforce. Because a suspended sentence is impermissible, restitution cannot be made a condition of probation. Because no Class 3 misdemeanors are subject to the Crime Victims’ Rights Act, an order for restitution cannot be enforced as a civil judgment. See G.S. 15A-1340.38(a) (authorizing civil judgment for restitution in excess of $250 for offenses subject to Crime Victims’ Rights Act). Whether an order of restitution may be enforced by contempt is unclear.