Here's the situation: A few years ago, a former investigator with this office allowed a defendant in a hot check case (we're talking $60,000) to avoid prosecution by agreeing in writing to repay the restitution at a rate of $1,000 per month. the defendant paid somewhat irregularly and, drawing close to the end of the statute of limitations, was about to be arrested when he was able to forestall prosectution once again with promises to pay. Fast forward to about three months ago. The defendant's new lawyer comes into the office and announces on his client's behalf that he would no longer be making any payments toward the restitution (about $23,000 remain unpaid) because the statute of limitation was now passed (5 years) since he wrote the check. He signed the agreement in May of 2000, still inside the statute.
We have been racking our brains trying to figure out whether we just have to move on (and tell the victim he's out of luck) or can still prosecute despite the fact that the statute of limitations appears to have lapsed.
One theory we have cobbled together is that the defendant's conscious decision to refuse to pay the remaining $23,000 by hiding behind the statute of limitations was an act of appropriation in and of itself and the agreement he signed in 2000 is evidence that the money he owed belonged to the victim.
Any one have any ideas? And, by the way, we are kind of embarrassed by this and would like constructive suggestions.
I wish I could be constructive, but the conscious decision not to pay (further) was a breach of contract without any new appropriation and thus does not change "the date of commission of the offense" (of theft). I assume the contract (agreement) envisioned the payments being made from future income and not funds the thief then had on hand. I hope someone else comes up with a better answer, but I think your victim should obtain a civil judgment for breach of the novation agreement (if they did not sue on the check to start out with), and you must suffer the embarassment.
I think a civil suit by the victim is the only possibility. To save some embarrassment in terms of your explanation to the victim, you may want to determine whether it was really a theft by check case. Was there a contemporaneous exchange of property and money? What was obtained for $60,000? Was it an extension of credit or payment on an account? If it does not qualify, your explanation to the victim would be that you got a fair amount of restitution for issuance of a bad check that only carried a Class C misdemeanor punishment.
I agree with prior assessments. The civil statute of limitations on a contract (4 years) has probably lapsed as well.
Overall, it appears the office did well to collect what they could. If he had pleaded out on felony probation and was orderded to make monthly payments and his failure to make all the payments was his only violation, he is probably not going to revoked anyway.
If you have an agreement with a large amount of money or even a smaller amount, when you make the deal, get a written confession and a waiver of speedy trial and statute of limitations. I have never seen these type of agreements litigated but that process has worked well for us in our county.
I'm with Bill: your office got 37K on a 60K balance? That is what I call substantial performance. If he was able to cough up that much you should be able to levy on the judgment you will surely be awarded in the civil case.
If you want to pursue this sort of collection in the future, why not consider asking the defendant to:
1) provide a judicial confession of theft that can be used upon nonpayment and
2) a waiver of the statute of limitations.
Offer-acceptance-consideration. You speak of breach of contract, what is the consideration. If your consideration is the failure to act in a criminal case, could it be argued that you dealt a criminal case in a civil contract, and is that unethical? I don't know the answer, just wanted to flush it out here.
At a minimum, could the victim send a 1099 to the IRS concerning the money he lost. It won't help him, but what great revenge!
Beck, that is why I referred to the "new" agreement as a novation of the original contract under 3.310(b) and 3.414 of the Business & Commerce Code. The debtor was merely reaffirming the debt and promising to pay under different terms. Presumably the consideration was forebearance in either not collecting the judgment on the check (if there was one) or in not reducing the debt to a judgment. That construction is also necessary to try to avoid the limitation problem in the civil suit (although it may also have been allowed to "run out"). Nothing unethical about such an agreement from the prosecutor's standpoint. Certainly the agreement is not being used solely to gain an advantage in a civil matter.
Yes, I believe you are right Martin. My husband, (anyone who knows us would tell you that he is the smart one of the two of us) said the same thing.
Can you tell us what the $60,000 was supposed to pay for? It sounds like a lot of money for a single transaction, which suggests to me that there was more to it that simply "Here's your check - here's your [insert $60,000 item here]"
If there was some documentation transferring title to the property, or some otherwise important document was signed as a result of the check being passed, you may be able to proceed under 32.46, securing execution of document by deception (which has a 7 year statute).
I say call the criminal investigative division of the IRS. Wouldn't the proceeds of theft qualify as gain? If not claimed on a return when incurred, at the very least, would result in an assessment of tax AND probably a rather large penalty.
It's been a long time since Tax Class, but isn't it a 7 or 10 year statute on income tax evasion?
John Bradley has excellent suggestions to avoid this in the future. I would think a properly drafted pre-trial diversion agreement incorporating those elements would be a good consideration for future enforcement.
Lots of luck, Shane.
$60,000 is a lot of money. I think a better approach would be a deferred or regular probation with some jail time as a condition of probation. Let the probation department monitor the payments or the lack thereof.
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