MD Appellate Court: Restitution does not include attorney’s fees

Judges may not order convicted thieves to pay restitution for the attorney’s fees their victims paid to get their property back, Maryland’s second highest court ruled this month.

In its reported opinion, the Appellate Court said the restitution provision of Maryland criminal law authorizes judges to order payment to compensate victims for losses resulting from their physical or mental injuries, which does not include the fees they paid or owed to their civil attorneys.

The court issued its 3-0 decision in overturning a Prince George’s County Circuit judge’s order that Sharon Shivers pay her elderly father, John Smith, the $6,000 he paid or owed an attorney in an effort to recover the $85,000 she unlawfully withdrew from his bank account. The restitution award was in addition to the six-month jail sentence the trial judge handed down after a jury found Shivers guilty of theft of property between $25,000 and $100,000.

In its ruling, the Appellate Court cited the Criminal Procedure Article, or CP, which provides restitution for the victims’ loss of earnings; medical, dental, hospital, rehabilitation counseling, funeral or burial expenses; and “direct out-of-pocket” losses. The court said the victims’ attorney’s fees do not qualify as an out-of-pocket loss because payment due a lawyer is not in keeping with the statute’s clear aim of compensating victims for their injuries.

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“Our review of the plain statutory text and legislative history leads us to conclude that (CP § 11-603) exclusively authorizes a court to award restitution for a victim’s expenses and losses resulting from physical or mental injury,” Judge Donald E. Beachley wrote for the court.

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“In our view, the legislature adopted the general phrase ‘direct out-of-pocket loss’ … because it intended to award restitution for out-of-pocket losses resulting from physical and mental injuries that were not specifically enumerated” elsewhere in the statute, Beachley added. “We therefore conclude that the (circuit) court erred in awarding Mr. Smith attorney’s fees he incurred to recover his funds pursuant to (CP § 11-603’s) provision for direct out-of-pocket loss.”

According to trial testimony, an ailing Smith added Shivers’ name to his bank account in November 2017 to enable her to pay his bills if he became too incapacitated to do so.

In March 2019, Shivers withdrew $85,000 from the account without telling Smith.

Shivers testified at trial that she believed she could manage the funds better than her father could. According to testimony, Shivers refused to return the money when Smith asked for it, saying she would “think about it.”

Apart from the trial, Smith retained an attorney who obtained a court order preventing Shivers from dissipating Smith’s funds, according to the Appellate Court’s opinion.

The attorney’s fees came to $6,000, which the trial judge sentenced Shivers to pay in restitution.

The Appellate Court upheld Shivers’ conviction and jail sentence but struck down the restitution award.

The Maryland attorney general’s office declined to comment on the court’s decision.

Shivers’ appellate attorney, Marc A. DeSimone Jr., did not immediately return messages Wednesday seeking comment on the Appellate Court’s decision.

Beachley was joined in the opinion by Judges Dan Friedman and James P. Salmon, a retired judge who sat by special assignment.

The Appellate Court issued its decision in Sharon Shivers v. State of Maryland, No. 879 September Term 2021.

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