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April 29, 2013 Victor Stone
VICTIM’S RIGHT TO APPEAL A DENIAL OF RESTITUTION UPHELD
On August 27, 2014, in a case called Lindsey v. State (No. 495, 2012 Term), the Maryland Court of Special Appeals upheld the statutory changes enacted by the Maryland Legislature in 2011 that allow a victim to seek reconsideration by a trial court of its denial of restitution within 30 days, appeal if they are not successful in their reconsideration request, and if they prevail on appeal, receive restitution. The defendant, who shot and injured the victim, Mr. Lindsey, in a manner that required hospitalization and left him permanently incapable of resuming his profession, had entered a guilty plea to attempted robbery pursuant to a written plea agreement setting a sentencing cap which the court agreed not to exceed. No mention was made of restitution in the written plea agreement or at the time of the guilty plea. Subsequently, at the time of sentencing, the victim asked for restitution from the defendant of $9,700 in unreimbursed medical expenses that the victim incurred. The trial court ruled that it was not allowed to award restitution because that would increase the previously agreed upon plea-bargained sentence. The victim sought reconsideration from the trial court of its ruling within 30 days, which was unsuccessful, and then the victim appealed to the Maryland Court of Special Appeals.
On appeal, the defendant argued that the victim was required to appeal from the original sentence rather than from the trial court’s reconsideration ruling, and that because restitution was not mentioned in the written plea agreement, ordering it would violate both the plea agreement and the Double Jeopardy Clause. In a lengthy unanimous opinion, the Court of Special Appeals disagreed. The Court held that victims could seek reconsideration of their restitution requests from a trial court and then appeal from a denial of the reconsideration motion. The Court also held that plea bargains between the defendant and the State that do not mention restitution do not waive a victim’s right to seek restitution. Finally, the Court ruled that remanding the case for consideration of a restitution order does not violate the Double Jeopardy Clause of the Constitution by increasing a final sentence because this restitution procedure is a constituent part of the original sentencing procedure, which as to restitution is not final until after all of the steps in the statutory restitution procedure have been completed. This is the first reported appellate case in Maryland that upholds a the victims’ right, when they have been denied restitution at sentencing, to utilize this post sentencing restitution procedure to obtain a trial court reconsideration hearing, then appellate review of an adverse trial court reconsideration ruling, and thereafter obtain a remand from the appellate court for the trial court to properly reconsider the imposition of restitution.
Russell Butler, Executive Director, and Victor Stone, attorneys for the Maryland Crime Victim Resource Center (MCVRC) represented the victim, ensuring that his right to get consideration of his restitution request during the legal proceedings was protected. Russell P. Butler, Executive Director of Maryland Crime Victims’ Resource Center, Inc. indicated, – “The judicial system will no longer be able to ignore the rights of crime victims. Victims can appeal when their rights are denied and appellate courts can correct errors. Victims’ rights now have adult teeth and they must be respected.”
As a result of this case, victims who have not been informed about their right to restitution at the time a plea bargain is entered may object at the time of sentencing and utilize the trial and appellate court procedures to obtain restitution. The Maryland Crime Victims’ Resource will support victims’ representatives in those cases who request assistance.
MCVRC is a statewide non-profit organization whose mission is to ensure that the rights of victims of crime are fully implemented at no cost to the victim, and that the victims are treated with dignity and compassion. MCVRC (www.mdcrimevictims.org) also offers no cost grief counseling, counseling for children, and other support group activities. MCVRC has offices in Baltimore and Upper Marlboro, Maryland, and can be reached, toll free, at 1 877 VICTIM1.