Defendant pleads guilty to burglary, with only restitution to be hammered out. Victims will testify that $8000 worth of floor buffing materials were stolen.

Defendant asserts that he shouldn't have to pay because he was aided by victim's daughter, who was never indicted, due to witnesses to burglary recanting original ID of daughter and boyfriend and now saying that it wasn't the daughter who helped but instead the defendant's parents. I have those eye witnesses, but they are friends of the victim/parents and I'm worried the judge will not listen to their change in story and feel sorry for the defendant--unfairness of picking the wrong burglary partner, I guess.

If the judge does believe that the daughter was involved, I want to have a Plan B argument that says the defendant is liable for full amount, regardless of what happens to co-defendant. All case law I have found so far talks about judges splitting restitution down the middle for co-defendants, and I don't the vics to get their restitution halved because their daugther has bad taste in men.

Anyone have any caselaw in that direction--unindicted or dead or very poor co-defendant does not let off the other bad guy? I'm still looking, but not any luck so far.

Our judgments almost always state the total amount of the restitution, and that EACH of the defendants is liable for the entire amount. The idea is that it should not be up to the victim to count on every one of the defendants to pay their share. Defense counsel can let his client know that his client may seek contribution from a person who the defendant can establish should share liability. You might search for "joint and several" and "restitution" to see if you get any good results that way.

Our conditions of probation always have "joint and several" in cases involving co-defendants since one of them might abscond, another not pay or another get revoked before paying. It is the only way to get full restitution for the victim (hopefully).

The "joint and several" language has been a standard condition of probation in Williamson County for as long as I have been here. Its something the defense bar has come to accept as part of a standard offer.

If you are worried about the defendant you currently have on your docket you can always require a portion of the restitution be paid up front as a condition of the deal with the remainder to be paid over the term of probation.

As for arguments as to this standard practice, I would think standard common law of contracts applies. Where a meeting of the minds has occurred as to the terms (including joint and several liability for the full restitution and/or whatever up front amount you require) and both sides have given consideration (true in almost any plea bargain) then both parties are bound by the terms of the agreement.

Given the well settled law regarding plea bargaining, the real question, at least in my mind, becomes what law could the defense counsel or your judge bring up that would prevent it?

We ended up agreeing on a number much lower than what my vics thought they should get--many problems with proof of the value of the items taken. But the main argument the defense was giving and the judge was buying is fairness--to the defendant, because his co-defendant that was never charged was the vic's daughter. No matter what I said, the judge was only going to make him liable for half of what I could prove out of that "fairness" idea. I could not find any case law that said one defendant is liable for the whole amount--even though we all use it every day in restitution. I didn't get into civil contract stuff, but that might have been a route...next time!

Just curious - what was the amount of restitution ultimately ordered? Mainly because I wanted to see if the offense level of conviction would be affected (and wonder if the judge even considered that issue)?

We agreed on $4g. The victims wanted $12G, but we could only prove the value for about $5G, and I knew the judge would cut that in half even if I could prove the $5 up. This was a bunch of equipment--floor sanders, painting equipment, tubes, tool boxes, etc. that some had been paid for and some had been trades in kind, so the victims could not testify from personal knowledge what most of the items were worth as they did not pay for them (especially the major items).

The offense was burg of hab, so no affect on offense, but incidentally, in my research I did find some case law that said the restitution ordered does not have to coincide with the offense level amount.

It is ironic that the primary purpose of a criminal prosecution should be to restore the loss sustained by the victim and to insure the criminal learns that crime does not pay.

Yes, I thought it was extremely unfair that if someone gives you a gift, and you didn't pay for and thereby know from personal knowledge the price, then an expert is required to prove it up. And what about "sentimental value" items that are pretty much worthless to others, but irreplaceable to the victim? The caselaw was pretty clear, though, that the burden is on the state, but at least it's only preponderance.