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  1. #1
    Join Date
    Mar 2006
    Posts
    1

    Default Failure to Pay Restitution And Probation Violation

    Hi, please I need advice, my apologies for the length -- please read:

    My husband, first time offender, 45 y/o, was sentenced to five years probation and restitution of approximately $29,000 - for a felony conviction - Scheme To Defraud. He did not received a hearing regarding his non-ability to pay his restitution which was set at $600/month.

    The 'victim' who the restitution is going to, to this day still retains personal property of his - of substantial value and has not returned it.

    Also the amount of restitution was for an item that a third party actually defrauded my husband and 'lost' it or 'never had it' and we now apparently have to sue him civilly to try to recoup this cover-up.

    My husband also received a summary judgment from the judge - for the same amount of his total restitution (approx. $29,000). He attempted numerous times to request in writing - to get in front of the judge - (for a reduction in his restitution because of his inability to pay over the last two years) but was never called in.

    He has paid some restitution as suggested by his PO "pay what you can" until your hearing.

    The original high-ranking administrative judge that heard the case, not the probation department, violated him for failure to pay restitution, remanded him for 60 days prior to a scheduled re-sentencing at the end of this month.

    It is my understanding that the PO has recently written a letter to the judge stating why she didn't violate him - and her agreement that probation is still appropriate for him.

    This judge is coincidentally friends with a high profile DA my husband did work for on a custom design piece.

    The ADA that prosecuted him is helpful and assisting him by securing the minutes of the first sentencing and authorizing release of valuable personal property that was taken from him on the day of his arrest.

    He has amicable relationships with the prosecuting DA, the arresting officer all of his CO's and his PO's.

    His original lawyer was paid for by the $10,0000 bail money posted by my parents who are elderly and ill. They are beginning to feel that the state is trying to extort money from any source. The stresses of him being unexpectedly incarcerated and there diligent attempts to help seemed to backfire.

    We don't know why but the judge perceives him as living a 'high-life' in lieu of paying his restitution. Which through substantial financial documents has been proven is NOT the case. We buy our clothes at thrift shops and eat mostly beans and produce, we are VERY thrifty because we were before his arrest, a 'lack of finiances' originally led up to the reason for his arrest.

    He has been assigned a Public Defender who requested the 'back' restitution be brought current, which it was through another loan from my parents.

    My questions are?

    1. Can he ask for another judge? This judge (high ranking Administrative judge) - does not 'hear' him or his attorney and threatened that if he went for the 'hearing' and did not just plead guilty to his alleged violation, she would just sentence him to the maximum. Now he feels he must plead guilty even though he is up-to-date on his restitution.

    2. Will the sentence be posed from the original conviction?

    -or-

    3. Does any of the time he already served on probation (2 years) count?

    4. How can we present that this judge is personally biased against him? or ...... file a complaint against this judge without additional negative consequences to him?

    Incidentally when I first talked to the assigned PD, he promptly informed me that this judge is "The most universally disliked judge in the system". (Disliked by prosecutors, defendants, the probation department, corrections, defense attorneys, other judges etc.) He went on to ad that she was a "tough cookie".

    My own third hand experience through the pre-trial - has been that the information one provides to her at her request for proof is then twisted to meet her personal goals for the outcome of the situation. She will ask for other things, but no matter how detailed, truthful and documented your proof is she is never satisfied.

    Currently while in jail he has applied to work in the law library, the laundromat and for suicide prevention watch.

    Thanks to anyone who can tell me what to do at this point!

    He has a good modest job and loving family waiting for him.

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default

    Not liking a judge is not a basis for getting a different judge.

    At a resentencing for a probation violation, credit is given for prior periods of incarceration.

    Your husband should consult a criminal defense lawyer, ideally one who has a focus on sentencing issues.

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