Restitution Procedure – Using Pleadings Filed by the Victim’s Attorney
In March 2011, Michael brown was charged with several crimes involving sexual conduct with minor L.N. The victim’s counsel sought to enter an appearance for the purpose of asserting a claim for restitution, but the district court denied that request and held that restitution procedure does not allow L.N. to file through counsel because she was not a proper party. The court noted that counsel may speak on L.N.’s behalf where appropriate. Brown pleaded guilty in 2012 to a single count of unlawful sexual activity with a sixteen or seventeen year old. He received a term not to exceed five years, probation, and was ordered to pay an award of restitution to the victim. Restitution was not an exact amount because restitution procedure allowed for it to be determined later.
L.N. filed a notice of a claim for restitution about one month after Brown was sentenced, seeking $612.00 for lost wages her mother incurred for attending hearings on her daughter’s behalf and $616.00 for costs incurred in traveling to the hearings. Brown moved to strike L.N.’s request and argued that L.N. and her mother were not entitled to restitution for such expenses under Utah law, and L.N. did not have standing to file such a pleading in the criminal action. The State then filed its own request for restitution, seeking $1,228.00 on L.N.’s behalf. Brown objected to this request on the ground that travel costs and lost wages incurred to attend hearings are not recoverable as restitution. The district court granted Brown’s motion to strike, holding that crime victims are not parties to criminal proceedings and thus lack standing to file pleadings, including requests for restitution. The district court also rejected the restitution claim on its merits because a victim’s lost wages and costs of traveling to hearings are not eligible for restitution under Utah Code section 77-38A-302(5)(b) when a victim is not subpoenaed or otherwise compelled to attend.
Under article I, section 28 of the Utah Constitution, victims have the right to be heard at important criminal justice hearings related to the victim. The term “important criminal justice hearings” includes court proceedings involving restitution. The court discussed that the right to be heard is not the same as a right to file a pleading in a criminal case. Pleadings are filed by parties only, which are the prosecution and the defendant. Thus, the question this court looked at was whether the governing statutes recognize a victim’s limited-party status for the purpose of filing a notice of a claim for restitution.
A crime victim is not entitled to participate at all stages of the proceedings or for all purposes. However, that does not eliminate the possibility that a victim may qualify as a limited-purpose party with standing to assert a claim for restitution. The court concluded that crime victims do possess the status of a limited-purpose party with the right to file a request for restitution. On that basis, the court found error in the district court’s decision to strike L.N.’s request for restitution.
Additionally, the victim was limited to recovering only pecuniary damages under Utah Code Ann. § 77-38a-102(11). Pecuniary damages are defined as all demonstrable economic injury, whether or not yet incurred, which a person could recover in a civil action arising out of the facts or events constituting the defendant’s criminal activities. The lost wages and expenses requested for L.N. and her mother are not pecuniary damages compensable as an element of restitution. The error in not allowing L.N. to file her own notice of a claim for restitution was harmless.