GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	1 

HOUSE BILL 217

Short Title:  Restitution/Civil Judgment.	(Public)

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Sponsors: Representatives McCrary, Culpepper, Hensley, R. Hunter, and Neely.

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Referred to:  Judiciary II.

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February 17, 1997

A BILL TO BE ENTITLED
AN ACT TO ALLOW THE ENFORCEMENT OF AN ORDER FOR RESTITUTION IN A CRIMINAL CASE IN THE SAME MANNER AS A CIVIL JUDGMENT, TO CREATE AN EXCEPTION TO THE STATUTORY EXEMPTIONS FOR EXECUTION OF SUCH A JUDGMENT, AND TO CHANGE THE ORDER OF PRIORITY FOR DISBURSEMENT OF FUNDS IN A CRIMINAL CASE.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 15A-1343(d) reads as rewritten:
"(d)	Restitution as a Condition of Probation. – As a condition of probation, a defendant may be required to make restitution or reparation to an aggrieved party or parties who shall be named by the court for the damage or loss caused by the defendant arising out of the offense or offenses committed by the defendant.  When restitution or reparation is a condition imposed, the court shall hold a hearing to determine the amount of restitution or reparation due the aggrieved party or parties. The court shall take into consideration the resources of the defendant, including all real and personal property owned by the defendant and the income derived from such property, his ability to earn, his obligation to support dependents, and such other matters as shall pertain to his ability to make restitution or reparation, but the court is not required to make findings of fact or conclusions of law on these matters when the sentence is imposed. The amount must be limited to that supported by the record, and the court may order partial restitution or reparation when it appears that the damage or loss caused by the offense or offenses is greater than that which the defendant is able to pay. An order providing for restitution or reparation, as a condition of supervised or unsupervised probation, except an order resulting from a worthless check, may be enforced in the same manner as a civil judgment as provided in this subsection. Upon a finding that restitution in a sum certain remains due and payable, and that the defendant's probation should be terminated or revoked, the judge presiding at the probation termination or revocation hearing shall order that a judgment be docketed pursuant to G.S. 1-233, et seq., in the county of the original conviction as of the date of notification to the clerk in that county. The clerk shall add to the amount of the judgment to be docketed amounts equal to the standard fees for docketing, copying, certification, and mailing, as appropriate, and shall collect any other fees or charges incurred as in the enforcement of other civil judgments. The clerk shall notify the victim by first-class mail at the victim's last known address of the docketing of the judgment and provide the victim with a certified copy of the order directing entry of the civil judgment. A civil judgment under this section shall be reduced by any payments made by the defendant pursuant to the criminal case, including payments made pursuant to work release privileges.  An order providing for restitution or reparation shall in no way abridge the right of any aggrieved party to bring a civil action against the defendant for money damages arising out of the offense or offenses committed by the defendant, but any amount paid by the defendant under the terms of an order or judgment as provided herein shall be credited against any judgment rendered against the defendant in such civil action.  As used herein, ‘restitution' shall mean (i) compensation for damage or loss as could ordinarily be recovered by an aggrieved party in a civil action, and (ii) reimbursement to the State for the total amount of a judgment authorized by G.S. 7A-455(b).  As used herein, ‘reparation' shall include but not be limited to the performing of community services, volunteer work, or doing such other acts or things as shall aid the defendant in his rehabilitation.  As used herein ‘aggrieved party' includes individuals, firms, corporations, associations, other organizations, and government agencies, whether federal, State or local, including the Crime Victims Compensation Fund established by G.S. 15B-23.  Provided, that no government agency shall benefit by way of restitution except for particular damage or loss to it over and above its normal operating costs and except that the State may receive restitution for the total amount of a judgment authorized by G.S. 7A-455(b).  A government agency may benefit by way of reparation even though the agency was not a party to the crime provided that when reparation is ordered, community service work shall be rendered only after approval has been granted by the owner or person in charge of the property or premises where the work will be done.  Provided further, that no third party shall benefit by way of restitution or reparation as a result of the liability of that third party to pay indemnity to an aggrieved party for the damage or loss caused by the defendant, but the liability of a third party to pay indemnity to an aggrieved party or any payment of indemnity actually made by a third party to an aggrieved party does not prohibit or limit in any way the power of the court to require the defendant to make complete and full restitution or reparation to the aggrieved party for the total amount of the damage or loss caused by the defendant.  Restitution or reparation measures are ancillary remedies to promote rehabilitation of criminal offenders, to provide for compensation to victims of crime, and to reimburse the Crime Victims Compensation Fund established by G.S. 15B-23, and shall not be construed to be a fine or other punishment as provided for in the Constitution and laws of this State."
Section 2.  G.S. 148-57.1 is amended by adding a new subsection (b1) to read:
"( b1)	If the Post-Release Supervision and Parole Commission imposes restitution as a condition of parole or post-release supervision, the Commission shall notify the sentencing court of the restitution including the amount of restitution. The sentencing court shall order the clerk of court in the county of conviction to docket a civil judgment pursuant to G.S. 1-233, et seq., in the amount of restitution. The clerk shall add to the amount of the judgment to be docketed amounts equal to the standard fees for docketing, copying, certification, and mailing, as appropriate, and shall collect any other fees or charges incurred as in the enforcement of other civil judgments. The clerk shall notify the victim by first-class mail at the victim's last known address of the docketing of the judgment and provide the victim with a certified copy of the order directing entry of the civil judgment. An order providing for a civil judgment under this subsection shall in no way abridge the right of any aggrieved party to bring a civil action against the defendant for money damages arising out of the offense or offenses committed by the defendant, but any amount paid by the defendant under the terms of a civil judgment as provided herein shall be credited against any judgment rendered against the defendant in such civil action."
Section 3.  G.S. 1C-1601(e) reads as rewritten:
"(e)	Exceptions. – The exemptions provided in this Article are inapplicable to claims
(1)	Of the United States or its agencies as provided by federal law;
(2)	Of the State or its subdivisions for taxes, appearance bonds or fiduciary bonds;
(3)	Of lien by a laborer for work done and performed for the person claiming the exemption, but only as to the specific property affected;
(4)	Of lien by a mechanic for work done on the premises, but only as to the specific property affected;
(5)	For payment of obligations contracted for the purchase of the specific real property affected;
(6)	Repealed by Session Laws 1981 (Regular Session, 1982), c. 1224, s. 6;
(7)	For contractual security interests in the specific property affected; provided, that the exemptions shall apply to the debtor's household goods notwithstanding any contract for a nonpossessory, nonpurchase money security interest in any such goods;
(8)	For statutory liens, on the specific property affected, other than judicial liens;
(9)	For child support, alimony or distributive award order pursuant to Chapter 50 of the General Statutes;
(10)	For criminal restitution orders docketed as civil judgments pursuant to G.S. 15A-1343(d)."
Section 4. G.S. 7A-304(d) reads as rewritten:
"(d)	In any criminal case in which the liability for costs, fines, restitution, or any other lawful charge has been finally determined, the clerk of superior court shall, unless otherwise ordered by the presiding judge, disburse such funds when paid in accordance with the following priorities:
(1)  	Sums in restitution prorated among the persons entitled thereto;
(2)	Costs due the county;
(3)	Costs due the city;
(4)	Fines to the county school fund;
	(5)  	Costs due the State;
(6)  	Attorney's fees.
Sums in restitution received by the clerk of superior court shall be disbursed when:
(1)  	Complete restitution has been received; or
(2)  	When, in the opinion of the clerk, additional payments in restitution will not be collected; or
(3)  	Upon the request of the person or persons entitled thereto; and
(4)  	In any event, at least once each calendar year."
Section 5.  This act becomes effective December 1, 1997, and applies to offenses committed on or after that date.