HF 3485

as introduced - 93rd Legislature (2023 - 2024) Posted on 02/13/2024 04:34pm

A bill for an act
relating to public safety; modifying restitution provisions for crime victims;
amending Minnesota Statutes 2022, sections 609.10, subdivision 2; 609.125,
subdivision 2; 611A.02, subdivision 2; Minnesota Statutes 2023 Supplement,
sections 609A.03, subdivision 5; 611A.039, subdivision 1; 611A.52, subdivision
5; proposing coding for new law in Minnesota Statutes, chapter 611A; repealing
Minnesota Statutes 2022, sections 611A.04, subdivisions 1b, 2, 4, 6; 611A.045;
Minnesota Statutes 2023 Supplement, section 611A.04, subdivisions 1, 1a, 3, 5.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2022, section 609.10, subdivision 2, is amended to read:

Subd. 2.

Restitution.

(a) As used in this section, "restitution" includes:

(1) payment of compensation to the victim or the victim's family; and

(2) if the victim is deceased or already has been fully compensated, payment of money
to a victim assistance program or other program directed by the court.

"Restitution" includes payment of compensation to a government entity that incurs loss
as a direct result of a crime.

(b) When the defendant does not pay the entire amount of court-ordered restitution and
the fine at the same time, the court deleted text begin may deleted text end new text begin shall new text end order that all restitution shall be paid before
the fine is paid.

Sec. 2.

Minnesota Statutes 2022, section 609.125, subdivision 2, is amended to read:

Subd. 2.

Restitution.

(a) As used in this section, "restitution" includes:

(1) payment of compensation to the victim or the victim's family; and

(2) if the victim is deceased or already has been fully compensated, payment of money
to a victim assistance program or other program directed by the court.

"Restitution" includes payment of compensation to a government entity that incurs loss
as a direct result of a crime.

(b) When the defendant does not pay the entire amount of court-ordered restitution and
the fine at the same time, the court deleted text begin may deleted text end new text begin shall new text end order that all restitution shall be paid before
the fine is paid.

Sec. 3.

Minnesota Statutes 2023 Supplement, section 609A.03, subdivision 5, is amended
to read:

Subd. 5.

Nature of remedy; standard.

(a) Except as otherwise provided by paragraph
(b), expungement of a criminal record under this section is an extraordinary remedy to be
granted only upon clear and convincing evidence that it would yield a benefit to the petitioner
commensurate with the disadvantages to the public and public safety of:

(1) sealing the record; and

(2) burdening the court and public authorities to issue, enforce, and monitor an
expungement order.

(b) Except as otherwise provided by this paragraph, if the petitioner is petitioning for
the sealing of a criminal record under section 609A.02, subdivision 3, paragraph (a), clause
(1) or (2), the court shall grant the petition to seal the record unless the agency or jurisdiction
whose records would be affected establishes by clear and convincing evidence that the
interests of the public and public safety outweigh the disadvantages to the petitioner of not
sealing the record.

(c) In making a determination under this subdivision, the court shall consider:

(1) the nature and severity of the underlying crime, the record of which would be sealed;

(2) the risk, if any, the petitioner poses to individuals or society;

(3) the length of time since the crime occurred;

(4) the steps taken by the petitioner toward rehabilitation following the crime;

(5) aggravating or mitigating factors relating to the underlying crime, including the
petitioner's level of participation and context and circumstances of the underlying crime;

(6) the reasons for the expungement, including the petitioner's attempts to obtain
employment, housing, or other necessities;

(7) the petitioner's criminal record;

(8) the petitioner's record of employment and community involvement;

(9) the recommendations of interested law enforcement, prosecutorial, and corrections
officials;

(10) the recommendations of victims or whether victims of the underlying crime were
minors;

(11) the amount, if any, of restitution outstanding, past efforts made by the petitioner
toward payment, deleted text begin and deleted text end the measures in place to help ensure completion of restitution payment
after expungement of the record if granted new text begin , and whether the restitution order has been
docketed as a civil judgment according to section 611A.041, subdivision 10 new text end ; and

(12) other factors deemed relevant by the court.

(d) Notwithstanding section 13.82, 13.87, or any other law to the contrary, if the court
issues an expungement order it may require that the criminal record be sealed, the existence
of the record not be revealed, and the record not be opened except as required under
subdivision 7. Records must not be destroyed or returned to the subject of the record.

(e) Information relating to a criminal history record of an employee, former employee,
or tenant that has been expunged before the occurrence of the act giving rise to the civil
action may not be introduced as evidence in a civil action against a private employer or
landlord or its employees or agents that is based on the conduct of the employee, former
employee, or tenant.

Sec. 4.

Minnesota Statutes 2022, section 611A.02, subdivision 2, is amended to read:

Subd. 2.

Victims' rights.

(a) The Office of Justice Programs in the Department of Public
Safety shall update the two model notices of the rights of crime victims.

(b) The initial notice of the rights of crime victims must be distributed by a peace officer
to each victim, as defined in section 611A.01, at the time of initial contact with the victim.
The notice must inform a victim of:

(1) the victim's right to apply for reparations to cover losses, not including property
losses, resulting from a violent crime and the telephone number to call to request an
application;

(2) the victim's right to request that the law enforcement agency withhold public access
to data revealing the victim's identity under section 13.82, subdivision 17, paragraph (d);

(3) the additional rights of domestic abuse victims as described in section 629.341;

(4) information on the nearest crime victim assistance program or resource;

(5) the victim's rights, if an offender is charged, to be informed of and participate in the
prosecution process, including the right to request restitution; and

(6) in homicide cases, information on rights and procedures available under sections
524.2-803, 524.3-614, and 524.3-615.

(c) A supplemental notice of the rights of crime victims must be distributed by the city
or county attorney's office to each victim, within a reasonable time after the offender is
charged or petitioned. This notice must inform a victim of all the rights of crime victims
under this chapter new text begin and include information about how to make a request for restitution and
the forms necessary to make that request new text end .

Sec. 5.

Minnesota Statutes 2023 Supplement, section 611A.039, subdivision 1, is amended
to read:

Subdivision 1.

Notice required.

(a) Except as otherwise provided in subdivision 2,
within 15 working days after a conviction, acquittal, or dismissal in a criminal case in which
there is an identifiable crime victim, the prosecutor shall make reasonable good faith efforts
to provide to each affected crime victim oral or written notice of the final disposition of the
case and of the victim rights under section 611A.06 new text begin , any restitution that has been ordered
to the victim, and information about the process for civil judgment new text end . When the court is
considering modifying the sentence for a felony or a crime of violence or an attempted
crime of violence, the prosecutor shall make a reasonable and good faith effort to notify the
victim of the crime. If the victim is incapacitated or deceased, notice must be given to the
victim's family. If the victim is a minor, notice must be given to the victim's parent or
guardian. The notice must include:

(1) the date and approximate time of the review;

(2) the location where the review will occur;

(3) the name and telephone number of a person to contact for additional information;
and

(4) a statement that the victim and victim's family may provide input to the court
concerning the sentence modification.

(b) The Office of Justice Programs in the Department of Public Safety shall develop and
update a model notice of postconviction rights under this subdivision and section 611A.06.

(c) As used in this section, "crime of violence" has the meaning given in section 624.712,
subdivision 5, and also includes violations of section 609.3458, gross misdemeanor violations
of section 609.224, and nonfelony violations of sections 518B.01, 609.2231, 609.3451,
609.748, and 609.749.

Sec. 6.

new text begin [611A.041] RESTITUTION.
new text end

new text begin Subdivision 1. new text end

new text begin Right to restitution. new text end

new text begin A victim of a crime has the right to receive restitution
as part of the disposition of a criminal charge or juvenile delinquency proceeding against
the offender.
new text end

new text begin Subd. 2. new text end

new text begin Submission of request. new text end

new text begin (a) When providing the notice to the victim required
by section 611A.02, subdivision 2, paragraph (c), the prosecutor shall provide information
to the victim about the process to request restitution, the documentation necessary to support
the request, and the forms necessary to make the request. The information submitted by the
victim relating to restitution must describe the items or elements of loss, itemize the total
dollar amounts of restitution claimed, and specify the reasons justifying the amounts. A
request for restitution may include but is not limited to any out-of-pocket losses resulting
from the crime, including medical and therapy costs, replacement of wages and services,
expenses incurred to return a child who was a victim of a crime under section 609.26 to the
child's parents or lawful custodian, and funeral expenses.
new text end

new text begin (b) The prosecutor or their designee shall collect and submit the restitution request form
or affidavit and supporting documentation to the court administrator of the appropriate court
at least five business days before the sentencing or dispositional hearing. Copies of the
request form or affidavit and accompanying documentation must be provided to the offender
or, if represented, to the offender's attorney at least five business days before the sentencing
or dispositional hearing, and the restitution amount being requested must be provided to
the officer conducting a presentence or predispositional investigation. The presentence
investigation report made according to section 609.115, subdivision 1, must contain the
information described in this subdivision.
new text end

new text begin Subd. 3. new text end

new text begin Ordering restitution. new text end

new text begin (a) The court, in determining whether to order restitution
and the amount of the restitution, shall consider the following factors:
new text end

new text begin (1) the amount of economic loss sustained by the victim as a result of the offense; and
new text end

new text begin (2) the income, resources, and obligations of the offender.
new text end

new text begin (b) If there is more than one victim of a crime, the court shall give priority to victims
who are not governmental entities when ordering restitution. The court may not require that
the victim waive or otherwise forfeit any rights or causes of action as a condition of granting
restitution or partial restitution. An actual or prospective civil action involving the alleged
crime shall not be used by the court as a basis to deny a victim's right to obtain court-ordered
restitution under this section. The court may not require the victim to file an insurance claim
as a condition for requesting and receiving restitution nor set a restitution amount that
anticipates an insurance claim being filed by the victim, and the court may not take into
consideration gifts or donations to the victim in setting restitution.
new text end

new text begin (c) Restitution shall be ordered jointly and severally when there are multiple offenders
unless the court orders offenders to pay different restitution amounts, provided the court
states on the record the basis for the offenders not having joint and several liability for the
entire restitution amount.
new text end

new text begin Subd. 4. new text end

new text begin Sentencing or dispositional hearing; ordering restitution. new text end

new text begin (a) Upon
consideration of the restitution request at the sentencing or dispositional hearing, the court
shall order the offender to pay a specified amount as part of the offender's sentence based
on the restitution request presented to the court. If there is a likelihood of additional
out-of-pocket losses after the order is entered due to the ongoing nature of the loss incurred
by the victim, the court shall state on the record that upon submission of subsequent
restitution requests, the restitution order may be amended. If the court denies part or all of
the restitution requested, the court shall state on the record its reasons for its decision.
new text end

new text begin (b) If the restitution request was submitted at or before the sentencing hearing but did
not meet the timelines specified under subdivision 2, paragraph (b), the court may order
restitution or set a hearing on restitution. If a restitution request form or affidavit was not
submitted prior to or at the hearing, restitution shall not be ordered unless by agreement of
the prosecutor and the offender. If no restitution is ordered, upon request of the prosecutor,
restitution may be reserved for up to 60 days. To request restitution after restitution has
been reserved, the prosecutor shall submit the restitution request form or affidavit to the
court within the reserved period, and upon submission to the court, provide copies of the
request form or affidavit and accompanying documentation to the offender or, if represented,
to the offender's attorney. To contest restitution, the offender must submit a request for
hearing and motion to the court according to the procedures under subdivision 5.
new text end

new text begin Subd. 5. new text end

new text begin Contesting restitution. new text end

new text begin (a) An offender may challenge the requested restitution
by filing a request for a hearing with the court administrator and providing copies of the
request to the prosecutor. The offender's request must include a motion that sets forth all
challenges to the restitution and specifies the reasons for specific amounts that differ from
the amounts requested by the victim or victims. The motion must include any affidavits or
other documents supporting the motion. This motion and request for hearing must be
submitted to the court within 30 days of receiving written notification of the amount of
restitution requested or within 30 days of sentencing, whichever is later. An offender may
not challenge restitution after the 30-day time period has passed. Upon the offender's request
for the hearing, the court administrator shall, within ten business days, schedule a hearing
and provide notice of the hearing to the offender or, if represented, to the offender's attorney,
and the prosecutor.
new text end

new text begin (b) At the hearing on the restitution request, the burden of demonstrating the amount of
loss sustained by a victim as a result of the offense and the appropriateness of a particular
type of restitution is on the prosecution. The offender has the burden to produce evidence
to challenge the amount of restitution or specific items of restitution or their dollar amounts.
A dispute as to the proper amount or type of restitution must be resolved by the court by a
preponderance of the evidence.
new text end

new text begin Subd. 6. new text end

new text begin Later restitution requests and amendments; procedure. new text end

new text begin (a) The court may
issue an order of restitution if no restitution was ordered or reserved at the sentencing or
dispositional hearing if:
new text end

new text begin (1) the offender is on probation, committed to the commissioner of corrections, or on
supervised release;
new text end

new text begin (2) the true extent of the victim's loss or the loss of the Crime Victims Reimbursement
Board was not known at the time of the sentencing or dispositional hearing, or hearing on
the restitution request; and
new text end

new text begin (3) good cause is shown for not meeting the submission timelines specified in subdivision
2.
new text end

new text begin (b) The court may amend an order of restitution after the sentencing or dispositional
hearing, or hearing on the restitution request, if:
new text end

new text begin (1) the offender is on probation, committed to the commissioner of corrections, or on
supervised release; and
new text end

new text begin (2) the true extent of the victim's loss or the loss of the Crime Victims Reimbursement
Board was not known at the time of the sentencing or dispositional hearing, or hearing on
the restitution request.
new text end

new text begin (c) To make a request for restitution provided for under paragraph (a) or (b), the
prosecutor shall submit a request form or affidavit to the court. Upon submission to the
court, the prosecutor shall provide copies of the request form or affidavit and accompanying
documentation to the offender or, if represented, to the offender's attorney.
new text end

new text begin (d) To contest the restitution request under this subdivision, the offender must submit a
request for hearing and motion to the court according to the procedures under subdivision
5. If restitution is not contested, the court shall order the offender to pay a specified amount
as part of the offender's sentence based on the restitution request submitted to the court.
new text end

new text begin Subd. 7. new text end

new text begin Payment schedule; financial disclosure. new text end

new text begin (a) The court shall include in every
restitution order a provision that the offender must, within 60 days of the order, either pay
the entire restitution amount ordered or set up a payment plan according to this subdivision.
If the defendant is placed on supervised probation, the payment schedule or structure must
be incorporated into the probation agreement and must provide that the obligation to pay
restitution continues throughout the term of probation.
new text end

new text begin (b) The court may assign the responsibility for developing restitution payment plans to
the court administrator, the probation office, a correctional agency, the county attorney's
office, or another designated person or agency. The payment plan shall specify the installment
amount and the frequency of payment, and shall take into consideration the amount of
restitution owed, the length of probation or supervision period, and financial factors related
to the offender including monthly gross income, number of dependents, and child and
spousal support obligations. Unless otherwise ordered by the court, the installment payments
shall be paid monthly.
new text end

new text begin (c) An offender or prosecutor may request that the court review the payment plan by
filing a request for a hearing and submitting a motion that sets forth the challenges to the
current payment plan. A payment plan may be modified to reflect the offender's income,
resources, and obligations, or to take into account significant changes in circumstances that
impact the offender's ability to pay restitution, including loss or gain of employment, new
sources of income, and new financial obligations.
new text end

new text begin (d) An offender who has not paid restitution within 60 days of restitution being ordered
shall, upon request, complete and submit financial disclosure forms and any requested
supporting documentation to the court administrator, probation office, correctional agency,
county attorney's office, or another designated person or agency responsible for collecting
restitution or establishing a payment plan. An offender released from a Department of
Corrections facility and on supervised release may be directed by the offender's supervising
agent to complete the financial disclosure forms and set up a payment plan as a condition
of the offender's supervised release. The offender may be directed to provide verification
to the supervising agent that a payment plan has been established with the court administrator.
The commissioner of corrections shall develop a model financial disclosure affidavit.
new text end

new text begin (e) Data provided by the offender in the financial disclosure forms or affidavits submitted
under this subdivision are classified as court data under section 13.84, subdivision 1, subject
to the victim's right to information under section 13.84, subdivision 6, paragraph (a), clause
(2).
new text end

new text begin Subd. 8. new text end

new text begin Crime Victims Reimbursement Board request. new text end

new text begin The Crime Victims
Reimbursement Board may request restitution on behalf of a victim by filing a copy of
orders of the board, if any, which detail any amounts paid by the board to the victim. The
board may file the payment order with the court administrator or with the person or agency
the court has designated to obtain information relating to restitution. The board shall submit
the payment order not less than three business days after the order is issued by the board.
The court administrator or designee shall provide copies of the payment order to the
prosecutor and the offender or the offender's attorney within 48 hours of receiving the order
from the board or at least 24 hours before the sentencing or dispositional hearing, whichever
is earlier. By operation of law, the issue of restitution is reserved if the payment order is
not received at least three days before the sentencing or dispositional hearing. The filing of
a payment order for reimbursement with the court administrator shall also serve as a request
for restitution by the victim. The restitution requested by the board may be considered to
be both on its own behalf and on behalf of the victim. If the board has not paid reimbursement
to the victim or on the victim's behalf, restitution may be made directly to the victim. If the
board has paid reimbursement to the victim or on the victim's behalf, the court shall order
restitution payments to be made directly to the board.
new text end

new text begin Subd. 9. new text end

new text begin Payment and disbursement of restitution. new text end

new text begin The offender shall make restitution
payments to the court administrator of the county, municipal, or district court of the county
in which the restitution is to be paid. The court administrator shall disburse restitution in
incremental payments and may not keep a restitution payment for longer than 30 days,
except that the court administrator is not required to disburse a restitution payment that is
under $10 unless the payment would fulfill the offender's restitution obligation. When the
court orders the payment of restitution and the payment of a fine, fees, surcharges, or other
financial obligations, the court administrator shall apply any payments to the restitution
obligation before applying payments to the fine, fees, surcharges, or other financial
obligations, unless otherwise ordered by the court. The court administrator shall keep records
of the amount of restitution ordered in each case, any change made to the restitution order,
and the amount of restitution actually paid by the offender. The court administrator shall
compile the data and make it available to the Supreme Court and the legislature upon request.
new text end

new text begin Subd. 10. new text end

new text begin Civil judgment. new text end

new text begin (a) An order of restitution shall be entered and docketed as
a civil judgment, according to the process in this subdivision, in the name of any person or
entity named in the order, by the court administrator of the district court in the county in
which the order of restitution originated. For the restitution order to be entered and docketed,
the victim or Crime Victims Reimbursement Board must submit a form, as provided for in
section 548.09, subdivision 2, to the court administrator of the district court in the county
in which the restitution order was entered that identifies the victim as the judgment creditor.
If, by the expiration of the sentence or end of probation, the victim or Crime Victims
Reimbursement Board has not submitted the form, the court administrator shall enter the
restitution order as a civil judgment. Following the entry, the judgment shall be docketed
upon submission of the form provided for in section 548.09, subdivision 2, by the victim
or the Crime Victims Reimbursement Board. Filing fees for docketing an order of restitution
as a civil judgment are waived for any person or entity named in the restitution order. Upon
entry of judgment, the court administrator shall serve a notice of entry of judgment and
judgment on the prosecutor, offender, and victim. Interest shall accrue on the unpaid balance
of a judgment that has been entered as provided in section 549.09. A victim may request
that location information provided to the court for purposes of enforcing the restitution order
be sealed according to court rules. In the case of an offender who is on probation, the court
may not refuse to enforce an order for restitution solely on the grounds that the order has
been entered and docketed as a civil judgment. A juvenile court is not required to appoint
a guardian ad litem for a juvenile offender before entering and docketing a restitution order.
new text end

new text begin (b) A civil restitution judgment that has not been fully satisfied may be renewed by the
victim or the Crime Victims Reimbursement Board by service of the notice of renewal of
civil restitution judgment on the offender. Service must be by first class mail to the last
known address of the offender, with service deemed complete upon mailing by first class
mail, or in the manner provided for the service of civil process. The victim or the Crime
Victims Reimbursement Board must file the notice of renewal of civil restitution judgment
and proof of service with the court administrator in the county in which the restitution order
was entered. Upon filing of the notice and proof of service, the court administrator shall
administratively renew the judgment for restitution in the same court file as the original
civil restitution judgment. The judgment must be renewed in an amount equal to the unpaid
restitution plus the accrued unpaid interest. Civil restitution judgments may be renewed
multiple times until paid. Notice of the renewal of civil restitution judgment and proof of
service must be filed with the court administrator no later than ten years after the entry of
the original restitution judgment or the last renewal, whichever is later.
new text end

new text begin Subd. 11. new text end

new text begin Effect of order for restitution. new text end

new text begin An order of restitution may be enforced by
any person named in the order to receive the restitution or by the Crime Victims
Reimbursement Board in the same manner as a judgment in a civil action. Any order for
restitution in favor of a victim shall also operate as an order for restitution in favor of the
Crime Victims Reimbursement Board, if the board has paid reimbursement to the victim
or on the victim's behalf. The court administrator shall notify the commissioner of revenue
of the restitution debt in the manner provided in chapter 270A, the Revenue Recapture Act.
Whether the order of restitution has been docketed or not, it is a debt that is not dischargeable
in bankruptcy. A decision for or against restitution in any criminal or juvenile proceeding
is not a bar to any civil action by the victim or by the state according to section 611A.61
against the offender. The offender shall be given credit, in any order for judgment in favor
of a victim in a civil action, for any restitution paid to the victim for the same injuries for
which the judgment is awarded.
new text end

new text begin Subd. 12. new text end

new text begin Unclaimed restitution payments. new text end

new text begin (a) Restitution payments held by the court
for a victim that remain unclaimed by the victim for more than three years shall be deposited
in the crime victims account under section 611A.612.
new text end

new text begin (b) At the time the deposit is made, the court shall record the name and last known
address of the victim and the amount being deposited, and shall forward the data to the
Crime Victims Reimbursement Board.
new text end

new text begin Subd. 13. new text end

new text begin Estate of victim. new text end

new text begin If a victim dies before or after a request for restitution is
made or an order for restitution is issued, the personal representative of the victim's estate
may request or enforce an order for restitution on behalf of the victim. If a personal
representative is not appointed and no application is pending, an heir of the victim may file
an affidavit to request or enforce an order for restitution according to this subdivision.
Appointment of a personal representative does not affect the right of other victims, as defined
in section 611A.01, to request an order for restitution on their behalf.
new text end

Sec. 7.

Minnesota Statutes 2023 Supplement, section 611A.52, subdivision 5, is amended
to read:

Subd. 5.

Collateral source.

"Collateral source" means a source of benefits or advantages
for economic loss otherwise reimbursable under sections 611A.51 to 611A.68 which the
victim or claimant has received, or which is readily available to the victim, from:

(1) the offender;

(2) the government of the United States or any agency thereof, a state or any of its
political subdivisions, or an instrumentality of two or more states, unless the law providing
for the benefits or advantages makes them excess or secondary to benefits under sections
611A.51 to 611A.68;

(3) Social Security, Medicare, and Medicaid;

(4) state required temporary nonoccupational disability insurance;

(5) workers' compensation;

(6) wage continuation programs of any employer;

(7) proceeds of a contract of insurance payable to the victim for economic loss sustained
because of the crime;

(8) a contract providing prepaid hospital and other health care services, or benefits for
disability; new text begin or
new text end

deleted text begin (9) any private source as a voluntary donation or gift; or
deleted text end

deleted text begin (10) deleted text end new text begin (9) new text end proceeds of a lawsuit brought as a result of the crime.

The term does not include a life insurance contract.

Sec. 8. new text begin REPEALER.
new text end

new text begin (a) new text end new text begin Minnesota Statutes 2022, sections 611A.04, subdivisions 1b, 2, 4, and 6; and
611A.045, new text end new text begin are repealed.
new text end

new text begin (b) new text end new text begin Minnesota Statutes 2023 Supplement, section 611A.04, subdivisions 1, 1a, 3, and
5, new text end new text begin are repealed.
new text end

APPENDIX

Repealed Minnesota Statutes: 24-06155

611A.04 ORDER OF RESTITUTION.

Subdivision 1.

Request; decision.

(a) A victim of a crime has the right to receive restitution as part of the disposition of a criminal charge or juvenile delinquency proceeding against the offender if the offender is convicted or found delinquent. The court, or a person or agency designated by the court, shall request information from the victim to determine the amount of restitution owed. The court or its designee shall obtain the information from the victim in affidavit form or by other competent evidence. Information submitted relating to restitution must describe the items or elements of loss, itemize the total dollar amounts of restitution claimed, and specify the reasons justifying these amounts, if restitution is in the form of money or property. A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime, including medical and therapy costs, replacement of wages and services, expenses incurred to return a child who was a victim of a crime under section 609.26 to the child's parents or lawful custodian, and funeral expenses. An actual or prospective civil action involving the alleged crime shall not be used by the court as a basis to deny a victim's right to obtain court-ordered restitution under this section. In order to be considered at the sentencing or dispositional hearing, all information regarding restitution must be received by the court administrator of the appropriate court at least three business days before the sentencing or dispositional hearing. The court administrator shall provide copies of this request to the prosecutor and the offender or the offender's attorney at least 24 hours before the sentencing or dispositional hearing. The issue of restitution is reserved or the sentencing or dispositional hearing or hearing on the restitution request may be continued if the victim's affidavit or other competent evidence submitted by the victim is not received in time. At the sentencing or dispositional hearing, the court shall give the offender an opportunity to respond to specific items of restitution and their dollar amounts in accordance with the procedures established in section 611A.045, subdivision 3.

(b) The court may amend or issue an order of restitution after the sentencing or dispositional hearing if:

(1) the offender is on probation, committed to the commissioner of corrections, or on supervised release;

(2) sufficient evidence of a right to restitution has been submitted; and

(3) the true extent of the victim's loss or the loss of the Crime Victims Reimbursement Board was not known at the time of the sentencing or dispositional hearing, or hearing on the restitution request.

If the court holds a hearing on the restitution request, the court must notify the offender, the offender's attorney, the victim, the prosecutor, and the Crime Victims Reimbursement Board at least five business days before the hearing. The court's restitution decision is governed by this section and section 611A.045.

(c) The court shall grant or deny restitution or partial restitution and shall state on the record its reasons for its decision on restitution if information relating to restitution has been presented. If the court grants partial restitution it shall also specify the full amount of restitution that may be docketed as a civil judgment under subdivision 3. The court may not require that the victim waive or otherwise forfeit any rights or causes of action as a condition of granting restitution or partial restitution. In the case of a defendant who is on probation, the court may not refuse to enforce an order for restitution solely on the grounds that the order has been docketed as a civil judgment.

Subd. 1a.

Crime board request.

The Crime Victims Reimbursement Board may request restitution on behalf of a victim by filing a copy of orders of the board, if any, which detail any amounts paid by the board to the victim. The board may file the payment order with the court administrator or with the person or agency the court has designated to obtain information relating to restitution. The board shall submit the payment order not less than three business days after it is issued by the board. The court administrator shall provide copies of the payment order to the prosecutor and the offender or the offender's attorney within 48 hours of receiving it from the board or at least 24 hours before the sentencing or dispositional hearing, whichever is earlier. By operation of law, the issue of restitution is reserved if the payment order is not received at least three days before the sentencing or dispositional hearing. The filing of a payment order for reimbursement with the court administrator shall also serve as a request for restitution by the victim. The restitution requested by the board may be considered to be both on its own behalf and on behalf of the victim. If the board has not paid reimbursement to the victim or on the victim's behalf, reimbursement may be made directly to the victim. If the board has paid reimbursement to the victim or on the victim's behalf, the court shall order restitution payments to be made directly to the board.

Subd. 1b.

Affidavit of disclosure.

An offender who has been ordered by the court to make restitution in an amount of $500 or more shall file an affidavit of financial disclosure with the correctional agency responsible for investigating the financial resources of the offender on request of the agency. The commissioner of corrections shall prescribe what financial information the affidavit must contain.

Subd. 2.

Procedures.

The offender shall make restitution payments to the court administrator of the county, municipal, or district court of the county in which the restitution is to be paid. The court administrator shall disburse restitution in incremental payments and may not keep a restitution payment for longer than 30 days; except that the court administrator is not required to disburse a restitution payment that is under $10 unless the payment would fulfill the offender's restitution obligation. The court administrator shall keep records of the amount of restitution ordered in each case, any change made to the restitution order, and the amount of restitution actually paid by the offender. The court administrator shall forward the data collected to the state court administrator who shall compile the data and make it available to the supreme court and the legislature upon request.

Subd. 3.

Effect of order for restitution.

An order of restitution may be enforced by any person named in the order to receive the restitution, or by the Crime Victims Reimbursement Board in the same manner as a judgment in a civil action. Any order for restitution in favor of a victim shall also operate as an order for restitution in favor of the Crime Victims Reimbursement Board, if the board has paid reimbursement to the victim or on the victim's behalf. Filing fees for docketing an order of restitution as a civil judgment are waived for any victim named in the restitution order. An order of restitution shall be docketed as a civil judgment, in the name of any person named in the order and in the name of the crime victims reimbursement board, by the court administrator of the district court in the county in which the order of restitution was entered. The court administrator also shall notify the commissioner of revenue of the restitution debt in the manner provided in chapter 270A, the Revenue Recapture Act. A juvenile court is not required to appoint a guardian ad litem for a juvenile offender before docketing a restitution order. Interest shall accrue on the unpaid balance of the judgment as provided in section 549.09. Whether the order of restitution has been docketed or not, it is a debt that is not dischargeable in bankruptcy. A decision for or against restitution in any criminal or juvenile proceeding is not a bar to any civil action by the victim or by the state pursuant to section 611A.61 against the offender. The offender shall be given credit, in any order for judgment in favor of a victim in a civil action, for any restitution paid to the victim for the same injuries for which the judgment is awarded.

Subd. 4.

Payment of restitution.

When the court orders the payment of restitution and the payment of a fine, fees, surcharges, or other financial obligations, the court administrator shall apply any payments to the restitution obligation before applying payments to the fine, fees, surcharges, or other financial obligations, unless otherwise ordered by the court.

Subd. 5.

Unclaimed restitution payments.

Restitution payments held by the court for a victim that remain unclaimed by the victim for more than three years shall be deposited in the crime victims account created in section 611A.612.

At the time the deposit is made, the court shall record the name and last known address of the victim and the amount being deposited, and shall forward the data to the Crime Victims Reimbursement Board.

Subd. 6.

Estate of victim.

If a victim dies before or after a request for restitution is made or an order for restitution is issued, the personal representative of the victim's estate may request or enforce an order for restitution on behalf of the victim. If a personal representative is not appointed and no application is pending, an heir of the victim may file an affidavit to request or enforce an order for restitution pursuant to this subdivision. Appointment of a personal representative does not affect the right of other victims, as defined in section 611A.01, to request an order for restitution on their behalf.

611A.045 PROCEDURE FOR ISSUING ORDER OF RESTITUTION.

Subdivision 1.

Criteria.

(a) The court, in determining whether to order restitution and the amount of the restitution, shall consider the following factors:

(1) the amount of economic loss sustained by the victim as a result of the offense; and

(2) the income, resources, and obligations of the defendant.

(b) If there is more than one victim of a crime, the court shall give priority to victims who are not governmental entities when ordering restitution.

Subd. 2.

Presentence investigation.

The presentence investigation report made pursuant to section 609.115, subdivision 1, must contain information pertaining to the factors set forth in subdivision 1.

Subd. 2a.

Payment structure.

The court shall include in every restitution order a provision requiring a payment schedule or structure. The court may assign the responsibility for developing the schedule or structure to the court administrator, a probation officer, or another designated person. The person who develops the payment schedule or structure shall consider relevant information supplied by the defendant. If the defendant is placed on supervised probation, the payment schedule or structure must be incorporated into the probation agreement and must provide that the obligation to pay restitution continues throughout the term of probation. If the defendant is not placed on probation, the structure or schedule must provide that the obligation to pay restitution begins no later than 60 days after the restitution order is issued.

Subd. 3.

Dispute; evidentiary burden; procedures.

(a) At the sentencing, dispositional hearing, or hearing on the restitution request, the offender shall have the burden to produce evidence if the offender intends to challenge the amount of restitution or specific items of restitution or their dollar amounts. This burden of production must include a detailed sworn affidavit of the offender setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying dollar amounts of restitution which differ from the amounts requested by the victim or victims. The affidavit must be served on the prosecuting attorney and the court at least five business days before the hearing. A dispute as to the proper amount or type of restitution must be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of loss sustained by a victim as a result of the offense and the appropriateness of a particular type of restitution is on the prosecution.

(b) An offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested, or within 30 days of sentencing, whichever is later. The hearing request must be made in writing and filed with the court administrator. A defendant may not challenge restitution after the 30-day time period has passed.