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    blueshore's Avatar
    blueshore Posts: 1, Reputation: 1
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    #1

    Apr 25, 2012, 03:13 PM
    Restitution
    If a person is paying restitution to a victim can the victim also collect in a civil suit? The person has never missed a payment.
    excon's Avatar
    excon Posts: 21,482, Reputation: 2992
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    #2

    Apr 26, 2012, 08:07 AM
    Quote Originally Posted by blueshore View Post
    if a person is paying restitution to a victim can the victim also collect in a civil suit? The person has never missed a payment.
    Hello b:

    No. The civil court won't let a victim/plaintiff DOUBLE up.

    excon
    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #3

    Apr 26, 2012, 08:12 AM
    Quote Originally Posted by blueshore View Post
    if a person is paying restitution to a victim can the victim also collect in a civil suit? The person has never missed a payment.
    I respectfully disagree with Excon.

    The victim isn't collaterally estopped from filing a separate sut. The victim wasn't a party to the criminal action. If the restitution order failed to order restitution of the full amount that the perpetrator would owe the victim, the victim can sue for the difference.

    Victim is also entitled to seek a judgment. Civil court procedures for collection of a judgment are different than collection of a restitution order. Not as strong, generally, but different.
    excon's Avatar
    excon Posts: 21,482, Reputation: 2992
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    #4

    Apr 26, 2012, 08:37 AM
    Quote Originally Posted by AK lawyer View Post
    I respectfully disagree with Excon
    Hello lawyer:

    I don't especially disagree with you, though.

    There was more to say about the question, and I thought about elaborating further... But... Good for you for being, well, a LAWYER.

    When I said doubling up, what I meant was that a court won't let a victim/plaintiff actually COLLECT twice. A court might award a judgment in lieu of restitution, but not in addition to it. Now, I'm making that up. But, you'll have to show me where a court would do that..

    You bring up a good point about losses NOT covered under the restitution order, if any. But, I submit that a victim CAN present arguments in the criminal court regarding his losses. If he LOST there, I doubt whether a civil court would give him a second bite. I'm making that up too.

    It's also true, that the standard of PROOF is different in criminal court, and I don't know whether a victim would have to PROVE his losses BEYOND a reasonable doubt, or whether a preponderance of the evidence would be enough... THAT could be a reason a civil court would take it up..

    Finally, in the ordinary course of events, IF the payment plan won't FULLY reimburse the victim by the time the probationary period ends, these days the criminal judgment is CONVERTED to a civil judgment, so the probation can end on time. That's not absolute, and every state does it differently. But, in my view, for that reason alone, a civil suit would be premature..

    That's not to say a civil court WOULDN'T entertain a suit like this, but I believe my arguments would prevail. No?

    excon
    Fr_Chuck's Avatar
    Fr_Chuck Posts: 81,304, Reputation: 7692
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    #5

    Apr 26, 2012, 09:00 AM
    Yes there can be and often is a civil case, as ex con said, you will not pay double but the civil case may also add other issues like pain and suffering and could be for a larger sun.
    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #6

    Apr 26, 2012, 10:12 AM
    Quote Originally Posted by excon View Post
    ...
    It's also true, that the standard of PROOF is different in criminal court, and I don't know whether a victim would have to PROVE his losses BEYOND a reasonable doubt, or whether a preponderance of the evidence would be enough...
    ...
    I'm fairly certain that losses for the purpose of a restitution order don't have to be proven beyond a reasonable doubt.


    Quote Originally Posted by excon View Post
    ...
    That's not to say a civil court WOULDN'T entertain a suit like this, but I believe my arguments would prevail. No?
    ...
    If the victim sues the convicted defendant, defendant can try to prove that he already paid some or all of the damages claimed. If there's anything left over, plaintiff should recover judgment for that amount. He shouldn't have to wait for payment under the terms of a restitution order.

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