Sunday, October 25, 2020

Crime Might Pay the Victim

LAW MATTERS

Florida’s legislature not only provides jail time for criminals, it also pursues other goals in the criminal arena. The legislature believes criminals should not financially benefit from their actions and should also compensate their victims. Florida has numerous statutes implementing these objectives.

The easiest statute to understand is Section 732.802 of Florida Statutes. That statute is titled: “Killer not entitled to receive property or other benefits by reason of victim’s death.” The legislature got the title right. The statute attempts to stop a murderer from inheriting or acquiring ownership of assets from the person murdered.

The statute bars a murderer from any benefits under a Will and extension, a Trust. It directs the estate of the decedent pass as if the killer predeceased the decedent. The statute does not stop there. It goes on to prohibit any joint tenant from receiving the share of another joint tenant’s interest in property, barring the killer’s rights by survivorship. It applies equally to joint tenancy and property owned by husband and wife as tenancy by the entirety. The statute specifically applies to real and personal property, financial accounts and any other form of co-ownership with survivorship incidents. The statute mandates that bonds, life insurance and other contractual or arrangements on the decedent’s life not be paid to the decedent’s killer, but instead be paid as if the killer predeceased the decedent. If there are any loose ends, the statute goes on to direct that any other acquisition of property or interest by the killer, including a life estate in homestead property, is treated in accordance with the statute’s principles.

The statute provides that a final conviction of murder in any degrees is conclusive. But a conviction is not required. Even in cases where the murderer has successfully defended a criminal prosecution, if a court later determines by greater weight of the evidence that the killing was unlawful and intentional, the person is barred from financial gain.

The legislature has not limited its quest to murderers. Chapter 960 of Florida Statutes is titled “Victim Assistance.” At Section 960.29, the legislature finds that former approaches to the problem of compensating crime victims by restitution were inadequate and attempts to remedy the problem through a comprehensive statutory approach. Its solution is a civil restitution lien against the real and personal property owned by a convicted criminal who has committed a crime causing financial damage.

Courts are granted authority to impose a lien for cost of incarceration, for civil restitution to the victim and to prevent convicted offenders from increasing assets after conviction while crime victims and the State remain uncompensated for damages and lawsuits.

The statutes provide for a judgment in the amount in favor of the State for $250,000 for capital or life felonies and $50 per day of the convicted offender’s sentence for lesser crimes, to pay expenses of the State.


The statute attempts to stop a murderer from inheriting or acquiring
ownership
of assets from the person murdered.


The restitution lien goes hand in hand with Section 775.089 of Florida Statutes which mandates that in addition to any punishment, a criminal court must order the defendant to make restitution to the victim. Victim is defined as any person who suffers loss, a victim’s estate and next of kin if the victim is deceased, as the result of the offense. The term victim also includes governmental entities and political subdivisions when those entities are a direct victim of the defendant’s criminal action and not merely providing public services in response to the offense. If the crime involves bodily injury, the restitution order must include cost of necessary medical care, cost of physical or occupational therapy and loss income. An order of restitution may be enforced by the State, or by a victim named in the order to receive restitution in the same manner as a judgment in a civil lawsuit. The court is also required to mandate payment no later than deadlines provided in the statute.

Restitution liens are behind in priority to other pre-existing liens. That is not true of another statute which provides a lien in favor of the State on proceeds from literary or other types of account of crime for which the person is convicted. Section 944.512 provides super priority lien on those financial benefits in favor of the State.

The lien applies to all royalties, commissions, proceeds or any other thing of value payable to or accruing to a convicted felon or a person on his or her behalf from any literary, cinematic or other account of the crime for which the person was convicted. The lien attaches at time of the conviction. The statute directs that payment of the funds from the lien be distributed 25% to the dependants of the convicted felon (if there are any), 25% to the victim or victims of the crime or their dependants, then payment of all court costs incurred in prosecuting the convicted felon and the cost of imprisonment, with any balance to the Crimes Compensation Trust Fund to be distributed as awards to crime victims.

Despite all of these efforts, some criminals do get away with their ill gotten gains. Some are good at hiding money and others simply avoid getting anything in their own name that can be used to compensate a victim. After they get out of the penitentiary, some start businesses in their spouse’s name and report little or no income to the court. The State uses minimal resources to pursue restitution and victims often receive little or nothing.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

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