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National Crime Victim Law Institute

New and Noteworthy

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  • Barber v. Superior Court, No. A-11553, 2016 WL 4254886 (Alaska Ct. App. Aug. 10, 2016)

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    Defendant pled guilty to assault pursuant to a plea agreement and received a sentence that did not include restitution for the victim.  Background facts of the case include that the prosecutor’s office had faxed a notice of the sentencing proceeding the same day—just hours before—to the victim, who was incarcerated at the time on another charge.  The victim followed the instructions on the fax to call the court clerk if he wanted to participate at sentencing, however, the clerk’s office refused to accept the victim’s collect call from jail.  The regular procedure is for the prosecutor’s office to inform the court clerk that an incarcerated person will participate in a hearing telephonically, and the clerk will call the jail at the designated time, but that did not happen in this case.  As a result, the victim was denied an opportunity to exercise his state constitutional and statutory rights to be present and heard (telephonically) at the sentencing after the prosecutor mistakenly informed the court that the victim approved of the negotiated sentence.  The victim, in propria persona, petitioned the Alaska Court of Appeals for relief.  The victim argued that he is entitled to have the trial court re-open the sentencing proceeding to allow him to participate and request restitution.  The victim argued that re-opening sentencing for the purpose of modifying a judgment that may include restitution does not violate the state constitution’s double jeopardy clause.  While the petition was on appeal, the court received notice that the amount of restitution due to the victim had been paid in full by another defendant who was also convicted of assaulting the victim.  Concluding that the full payment of restitution by the co-defendant moots the issues on appeal, the court declined to reach the merits and denied the petition.  The court observed that the victim’s exclusion from the sentencing proceeding in this case has resulted in “‘the loss of trust in a [judicial] system that is now constitutionally and statutorily mandated to [recognize] the right of crime victims to participate in court proceedings and to have their interests considered by the court and the State.’”  The court urged “prosecuting attorneys, sentencing judges, and court staff to be more attentive to this problem in the future.”

  • State v. Morgan, — S.E.2d —, No. 2014-000420, 2016 WL 3960531 (S.C. Ct. App. July 20, 2016)

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    Defendant caused an automobile crash that resulted in both a civil claim for damages by the victim and a criminal prosecution for felony driving under the influence.  The victim sustained significant injuries as a result of the crash.  The victim and defendant settled the civil action— the settlement included a covenant purporting to waive certain types of liability in addition to clauses expressly reserving the victim’s right to bring suit regarding excess liability/underinsured motorists and specifying that the covenant was not a release.  Defendant subsequently pleaded guilty to assault and battery in the second degree in the criminal case.  In connection with sentencing, the state requested restitution in the amount of $238,660.10 for outstanding medical bills relating to the victim’s injuries—and the court ordered restitution in that amount—over defendant’s objection that the covenant in the civil settlement released defendant from liability for restitution.  After analyzing the purpose of victims’ right to restitution and cases from other jurisdictions addressing restitution in the context of previously settled civil claims, the Court of Appeals of South Carolina affirmed that, under state law, the “constructs of restitution and civil damages are separate and distinct.”  The court further held that “the plain language of the Covenant does not preclude further litigation between the parties, let alone restitution in the criminal court.”  Restitution was affirmed.