Florida Court Cannot Give a Defendant a Higher Sentence if He/She Cannot Pay Restitution

In theft cases in Florida, restitution is usually a critical issue. Restitution is the term the defines the amount of money (or the value of the stolen item(s)) that needs to be repaid to compensate the victim. Whenever a defendant pleads guilty to a theft or fraud crime, or gets convicted at a trial, the judge will normally order the defendant to pay restitution to compensate the victim for what was stolen, if applicable. While the case is pending, the matter of restitution will likely be a negotiated issue between the state and the criminal defense lawyer.

A judge is not allowed to increase a defendant’s sentence because he/she cannot pay restitution. Likewise, a judge is not allowed to condition a reduction in a defendant’s sentence upon the payment of some or all of the restitution. Such actions would violate the Equal Protection Clause of the Constitution which forbids the court from treating people differently based on their wealth, or lack thereof.

That is what the law says, but in reality whether a defendant can pay restitution, and how much he/she can pay, usually matters. In some cases, it can be the most significant factor in negotiations. The law says that the the judge cannot condition a lighter sentence on the payment of restitution or order a harsher sentence because the defendant cannot pay restitution, but in practice, when a defendant can pay some or all of the restitution in advance, the defendant’s criminal defense attorney can often use that to the defendant’s advantage and work out a much better sentence than when no restitution payments can be made in advance. After all, at the end of the day, getting his/her money back is usually a victim’s top priority.

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