Legal Question in Criminal Law in Michigan

I was convicted in Nov 2013 of a misdemeanor for which I was sentenced 2 years probation and restitution. It was for fraudulent student loans. I owed about 44k in restitution and have it paid down to 22k. I pay directly to the student loan company and make monthly payments, which was approved by my PO. Today I met with my probation officer for the last time and she said something that I want clarification on. She said next month I have to go in front of the judge for a show-cause hearing to explain why I haven't been able to pay the restitution in full. She said in Montcalm county, I will have to do this every 2 months until it is paid in full and it's at the judges discretion whether to accept what I have done or not. After meeting with her I got really scared. Can the judge still send me to jail over this? Is it now a civil matter where I could have financial consequences but not jail? I have actually been paying on these loans for almost 8 years so obviously I intend to pay (I have never missed a payment or been late on one in the whole 8 years).


Asked on 10/15/15, 12:57 pm

1 Answer from Attorneys

Neil O'Brien Eaton County Special Assistant Prosecuting Attorney

This is the second time you've posted this same question...or else you have a twin defendant who also had a $44k restitution order where "about $20,000" is still owed and you're about to get off probation. I answered Question 709772257 for you on 10/6/15. I have the same answer to today's question: Criminal restitution is a debt that never expires until it is paid in full, and can be collected from your estate when you die. It doesn't 'go away' when your probation term ends (2 yrs for your misdemeanor conviction rather than up to 5 yrs for a felony conviction). And the restitution balance you owe is not (supposed to be!) converted into a civil judgment, because by the language of the crime victims' rights act the restitution ordered at sentencing *is* a judgment and *is* a lien on your property. When your probation time ends, what happens? You still owe the money per your judgment of sentence. The statutes and court rules do not include a time limit within which the restitution must be paid (i.e., an expiration date). Under federal law, criminal restitution debts cannot be discharged in bankruptcy, either. The sentencing court retains jurisdiction indefinitely to enforce the restitution order. See People v Norman, 183 Mich App 203 (1989). The probation department would not be taking active steps to make sure you're paying (like it was when you are on probation the PO must check the file every 6 months, immediately report non-payment, etc.). But the court, through its staff, can still check that you're paying. And if you're not paying after probation ends the court still has contempt of court powers. See In re Reiswitz, 263 Mich App 158 (1999). That balance owed may be actively enforced by a prosecutor, the victim or anyone who is supposed to get the restitution through a variety of collection procedures, beginning with subpoenaing you to court to provide information about your income, assets and liabilities; this info will allow the court to issue garnishment orders against your paychecks, bank accounts and state income tax refunds, or get an order for the sheriff to seize and auction off your personal property to pay the restitution still owed. But the court has the authority to reject the victim's subpoena or garnishment requests if you're regularly paying your restitution. So, even after probation ends, keep up with your monthly payments; use your tax refunds to knock off extra chunks of restitution, too. The more you do to show the court, prosecutor and victim that you haven't forgotten what you owe the victim, the more likely they'll stay off your back.

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Answered on 10/15/15, 1:10 pm


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