Attorney General Opinions | 2012 Miss. AG LEXIS 294 | 2018


Attorney General Jim Hood is in receipt of your opinion request and has assigned it to me for research and response:

Facts and Issues Presented

Your letter requests our office's opinion regarding restitution that is awarded as part of a criminal judgment of conviction. Specifically you inquire regarding any precedent that addresses the statute of limitations regarding such judgments and if such limitations are applicable, the procedures to renew a judgment. Your letter also inquires as to the people or entities entitled to collect on a judgment. Additionally you ask us to provide any legal precedent that exists to support a practice within your judicial district whereby a civil judgment is given to victims who have been awarded restitution under a criminal judgment.


JIM HOOD, ATTORNEY GENERAL; Ricky G. Luke, Assistant Attorney General


RESPONSE

A restitution order which is part of a criminal judgment that is enforced via contempt is not subject to a limitations period. A restitution order recorded for enforcement in the judgment roll is subject to the limitations periods set forth in Miss. Code Ann. Section 15-1-47 and 15-1-51.

Legal Analysis and Discussion

Awards and collection of restitution awards are governed by the Restitution to Victims of Crimes Act, Miss. Code Ann. Sections 99-37-1, et. seq. (as amended)(the "Act"). As an initial matter, it is helpful to note the differences between a criminal judgment requiring restitution as opposed to a civil judgment in which a monetary award is made. In the criminal setting, a restitution award is part of the criminal punishment and an order of the court that the defendant make payments to the victim. In a civil setting a civil judgment is an order that allows the plaintiff the right to recover from the defendant by using such legal procedures as a levy, execution or a garnishment. In contrast to a restitution order, a civil judgment typically is not an order that the defendant pay certain amounts at a specified time and cannot be enforced by contempt. See In re Nichols, 749 So.2d 68, 70 (Miss.1999)(Outside certain exceptions, contempt as a means to enforce a civil monetary judgment would violate constitutional prohibition that "[t]here shall be no imprisonment for debt."). Because an award of restitution is based on a criminal conviction, rooted in public policy as opposed to contract, and an order that a defendant actually make payments, methods of collection not generally available under civil law are available for restitution awards.

The Act, at least implicitly, recognizes these distinctions and provides at least two enforcement mechanisms for collecting restitution awards. Whether a statute of limitations applies, depends on the method chosen. One method available is for the court, on motion of the district attorney or upon its own motion, to treat the failure to pay restitution as an act of contempt of court. See Miss. Code Ann. Section 99-37-7 (as amended). In this context and for purposes of contempt, our office has opined that no limitation period exists. MS AG Op. Thompson (April 27, 2001)("[O]nce a defendant has been found guilty and a fine has been imposed, there is no statute of limitations on collecting that fine."). Although Thompson involved fines, the use of contempt for both fines and restitution is set out in the same statute, and it is the opinion of this office that no statute of limitations would apply to a contempt action for default in restitution payments.

Section 99-17-13 authorizes a second method of collecting a restitution award by providing that a "default in payment . . . to make restitution or any [required] installment may be collected by any means authorized by law for the enforcement of a judgment." This section allows for the criminal judgment to be collected on as if it were a civil judgment. However, as noted above, a civil judgment is not an order to pay but instead operates to impress a lien on the assets of the defendant. Section 15-1-47 provides that "[a] judgment or decree rendered in any court held in this state shall not be a lien on the property of the defendant therein for a longer period than seven years from the rendition thereof, unless an action be brought thereon before the expiration of such time." This same seven-year period applies even to judgment liens held by the state or its political subdivisions. See Miss. Code Ann. Section 15-1-51 (1972); MS AG Op. Tompkins, (Oct. 3, 2008)(Limitation period runs against municipal assessments recorded as a lien on the judgment roll.)

A criminal judgment awarding restitution fits within the language of Section 15-1-47 which applies to decrees or judgments entered by "any court" of this state. Thus, it is the opinion of this office that where a restitution award is enforced as a civil judgment, the seven year lien provisions of Section 15-1-47 and 15-1-51 apply. To avoid expiration of the lien, and in answer to your specific question, a criminal judgment recorded for collection purposes would need to be renewed under the provisions of Section 15-1-43.

It is the opinion of this office that a victim awarded restitution has the right to collect on the judgment as well as the attendant obligation to renew the judgment prior to the expiration of the seven-year period. The Act on two occasions specifies that restitution will be made to a victim specified in the order. Moreover, Section 99-37-15 specifies that upon release and where restitution was suspended during incarceration, offenders "shall make restitution payments directly to a victim." See also, Section 99-37-5(2)(payment made directly to victim). For these reasons, it is the opinion of this office that a criminal judgment requiring restitution gives the victim a right to enforce the judgment by enrollment and civil collection remedies.

Your final question is whether there is any legal precedent that would allow a victim to be awarded a civil judgment when an offender is discharged from probation and where restitution remains unpaid. As previously noted, it is our opinion that a victim may enforce the criminal judgment as though it were a civil judgment. However, we were unable to find any precedent that would support the entry of a civil judgment without the filing of a civil action. Section 99-17-15 specifically addresses restitution after release but contains no authority for entry of a new civil judgment. Section 99-17-17 allows victims to bring civil actions for damages caused by the criminal activities leading to the defendant's conviction but envisions a judgment only after a trial of the matter. The applicable statutes have no provision for conversion of a criminal judgment to a new civil judgment, and we are likewise, unaware of any other legal principles that would allow such a procedure.

If our office can be of further assistance, do not hesitate to contact us.