CHAPTER 23A-28
RESTITUTION TO VICTIMS OF CRIME
23A-28-1 Policy of state--Enforcement of order.
23A-28-2 Definition of terms.
23A-28-3 Plan of restitution--Present inability to make restitution--No pecuniary damages suffered--Hearing--Condition of parole.
23A-28-4 Submission of restitution plan to court--Approval or modification.
23A-28-5 Factors considered in formulating restitution plan.
23A-28-6 Notice to victims of restitution plan--Civil action against defendant.
23A-28-7 Compliance with restitution plan as condition of probation or suspension--Payments to clerk.
23A-28-8 Failure to comply as violation of conditions of probation--Modification of plan by court--Contempt.
23A-28-9 Civil remedies of victims unimpaired--Restitution payments set off.
23A-28-10 23A-28-10. Repealed by SL 1986, ch 196, § 5
23A-28-11 Community service restitution--Plan preparation, approval and modification--Recipients exempt from providing reemployment assistance and workers' compensation insurance and certain civil liability.
23A-28-12 Minor victim's medical, psychological or psychiatric treatment or foster care--Sentence requiring payment.
23A-28-13 Unlawful taking of money from store or mercantile establishment.
23A-28-14 Release of certain information to victims of delinquent act of juvenile.
23A-28-15 Support for minor child victim--Vehicular homicide of parent.
23A-28-1. Policy of state--Enforcement of order.
It is the policy of this state that restitution shall be made by each violator of the criminal laws to the victims of the violator's criminal activities to the extent that the violator is reasonably able to do so. An order of restitution may be enforced by the state or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action.
Source: SL 1978, ch 178, § 355; SL 1985, ch 192, § 50; SL 1997, ch 143, § 1.
23A-28-2. Definition of terms.
Terms used by this chapter mean:
(1) "Community service restitution," public service work provided under court order that benefits the general public which includes: charitable agencies, governmental agencies, educational institutions, the handicapped, the elderly, the ecology, the church of the offender's choice, and any other agencies that the sentencing judge deems reasonably rehabilitative to the offender. No work service may result in gain to any private individual or to a private corporation;
(2) "Criminal activities," includes any crime for which there is a plea of guilty or verdict of guilty upon which a judgment of conviction may be rendered and any other crime committed after June 30, 1979, which is admitted by the defendant, whether or not prosecuted. However, the term does not include petty offenses;
(3) "Pecuniary damages," all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium. Without limitation, the term includes damages for wrongful death;
(4) "Restitution," full or partial payment of pecuniary damages to a victim;
(5) "Victim," any person, as defined in subdivision 22-1-2(31), who has suffered pecuniary damages as a result of the defendant's criminal activities, including any person or government agency who has by contract or by statute undertaken to indemnify another or to pay or provide a specified or determinable amount or benefit upon determinable contingencies. Any victim who has suffered pecuniary damages has priority of claim as opposed to any person or government agency who has a claim to indemnity or subrogation as a result of the same defendant's criminal activity.
Source: SL 1978, ch 177, § 1; SDCL Supp, § 23-48A-1; SL 1978, ch 178, § 354; SL 1979, ch 159, § 21; SL 1981, ch 191, § 1; SL 1994, ch 157, § 5; SL 1995, ch 135; SL 2021, ch 109, § 1.
23A-28-3. Plan of restitution--Present inability to make restitution--No pecuniary damages suffered--Hearing--Condition of parole.
If the sentencing court orders the defendant to the county jail, suspended imposition of sentence, suspended sentence, or probation, the court may require as a condition that the defendant, in cooperation with the court services officer assigned to the defendant, promptly prepare a plan of restitution, including the name and address of each victim, a specific amount of restitution to each victim, and a schedule of restitution payments. If the defendant is presently unable to make any restitution, but there is a reasonable possibility that the defendant may be able to do so at some time during the defendant's probation period, the plan of restitution shall also state the conditions under which or the event after which the defendant will make restitution. If the defendant believes that no person suffered pecuniary damages as a result of the defendant's criminal activities, the defendant shall so state. If the defendant contests the amount of restitution recommended by the court services officer, the defendant is entitled to a hearing at which the court shall determine the amount. If the sentencing court orders the defendant to a state correctional facility and does not suspend the sentence, the court shall set forth in the judgment the names and specific amount of restitution owed each victim. The Department of Corrections shall establish the collection schedule for court-ordered restitution while the defendant is in the state correctional facility and on parole. The Board of Pardons and Paroles shall require, as a condition of parole, that the defendant pay restitution ordered by the court.
Source: SL 1978, ch 177, § 2; SDCL Supp, §§ 23-48A-2, 23-48A-3; SL 1978, ch 178, § 356; SL 1985, ch 192, § 5; SL 1986, ch 196, § 1; SL 1987, ch 179, § 1; SL 1997, ch 143, § 2; SL 1999, ch 124, § 1; SL 2023, ch 82, § 47.
23A-28-4. Submission of restitution plan to court--Approval or modification.
The defendant's plan of restitution and the comments of defendant's court services officer shall be submitted promptly to the court. The court shall promptly enter an order approving the plan or modifying it and providing for restitution payments to the extent that the defendant is or may become reasonably able to make restitution, taking into account the factors enumerated in § 23A-28-5. The court thereafter may modify the plan at any time upon the defendant's request or upon the court's own motion.
Source: SL 1978, ch 177, § 5; SDCL Supp, § 23-48A-4; SL 1978, ch 178, § 357; SL 1982, ch 28, § 20.
23A-28-5. Factors considered in formulating restitution plan.
The court services officer when assisting the defendant in preparing the plan of restitution and the court before approving or modifying the plan of restitution shall consider the physical and mental health and condition of the defendant, the defendant's age, the defendant's education, the defendant's employment circumstances, the defendant's potential for employment and vocational training, the defendant's family circumstances, the defendant's financial condition, the number of victims, the pecuniary damages of each victim, what plan of restitution will most effectively aid the rehabilitation of the defendant, and each victim, and such other factors as may be appropriate.
Source: SL 1978, ch 177, § 2; SDCL Supp, § 23-48A-3; SL 1978, ch 178, § 357; SL 1986, ch 196, § 2; SL 1987, ch 179, § 2; SL 1999, ch 124, § 2.
23A-28-6. Notice to victims of restitution plan--Civil action against defendant.
The court services officer shall provide each known victim a copy of the court's order approving or modifying the plan of restitution for any defendant not serving his sentence in a state correctional facility. The executive director of the Board of Pardons and Paroles shall provide each known victim a copy of the schedule of restitution for each inmate placed on parole. If the victim is not satisfied with the approved or modified plan of restitution, the victim's exclusive remedy is a civil action against the defendant, which, if successful, may include attorney's fees.
Source: SL 1978, ch 178, § 359; SL 1979, ch 159, § 2; SL 1986, ch 196, § 3; SL 1987, ch 179, § 3; SL 1999, ch 124, § 3; SL 2023, ch 82, § 48.
23A-28-7. Compliance with restitution plan as condition of probation or suspension--Payments to clerk.
Compliance with the plan of restitution as approved or modified by the court shall be a condition of the defendant's probation or suspension. Restitution payments shall be made to the office of the clerk unless otherwise ordered by the court.
Source: SL 1978, ch 177, § 2; SDCL Supp, § 23-48A-2; SL 1978, ch 178, § 357.
23A-28-8. Failure to comply as violation of conditions of probation--Modification of plan by court--Contempt.
Failure of the defendant to comply with § 23A-28-3 or to comply with the plan of restitution as approved or modified by the court constitutes a violation of the conditions of probation. Without limitation, the court may modify the plan of restitution or extend the period of time for restitution, regardless of whether the defendant is no longer on probation. If the defendant fails to make payment as ordered by the court, the defendant may be held in contempt of the court's order.
Source: SL 1978, ch 177, § 4; SDCL Supp, § 23-48A-6; SL 1978, ch 178, § 360; SL 2001, ch 121, § 1.
23A-28-9. Civil remedies of victims unimpaired--Restitution payments set off.
Proceedings under this chapter do not limit or impair the rights of victims to sue and recover damages from the defendant in a civil action. However, any restitution payment by the defendant to a victim shall be set off against any judgment in favor of the victim in a civil action arising out of the same facts or event.
Source: SL 1978, ch 178, § 361; SL 1986, ch 196, § 4.
23A-28-11. Community service restitution--Plan preparation, approval and modification--Recipients exempt from providing reemployment assistance and workers' compensation insurance and certain civil liability.
If the sentencing court orders suspended imposition of sentence, suspended sentence, or probation, the court may require as a condition that the defendant, in cooperation with the court services officer assigned to the defendant, promptly prepare a plan of community service restitution, including the number of work hours to be performed, where the community service work is to be performed, and the time necessary for completion of the community service work. The plan of community service restitution shall be submitted promptly to the court. The court may enter an order approving the plan or modifying it. Any defendant sentenced to community service restitution is not an agent or employee of the recipients of these services. Any recipient of community service restitution, described in subdivision § 23A-28-2(1), does not have to provide the defendant with reemployment assistance insurance pursuant to Title 61 nor with workers' compensation insurance pursuant to Title 62. Recipients and their officers, agents, and employees are immune from any cause of action for civil damages brought by the defendant or any third party if the cause of action arises from any act of commission or omission by the recipient or any of its officers, agents, or employees or any act of commission or omission by the defendant and the acts arise out of or are in connection with a community service restitution plan, except when the cause of action is the result of gross negligence or willful and wanton misconduct of the recipient or its officers, agents, or employees and except to the extent that the recipient has purchased liability insurance. Nothing in this section relieves individual defendants from responsibility for their individual acts.
Source: SL 1981, ch 191, § 2; SL 1986, ch 197; SL 2019, ch 216, § 28.
23A-28-12. Minor victim's medical, psychological or psychiatric treatment or foster care--Sentence requiring payment.
Anyone convicted under subdivision 22-22-1(1) or (5), § 22-22-7, subdivision 22-49-2(2), § 22-22-24.3, or § 26-10-1 shall be required as part of the sentence imposed by the court to pay all or part of the cost of any necessary medical, psychological, or psychiatric treatment, or foster care of the minor resulting from the act or acts for which the defendant is convicted.
Source: SL 1984, ch 182; SL 1996, ch 155; SL 1997, ch 143, § 3; SL 2020, ch 89, § 7.
23A-28-13. Unlawful taking of money from store or mercantile establishment.
Any adult or emancipated minor as defined in § 25-5-24 or the parents or guardian of any unemancipated minor, or any employee of any store or mercantile establishment who takes possession of any money belonging to the store or other mercantile establishment without the consent of the owner and with the intention of converting the money to the person's own use is liable to the owner for the amount taken. In addition, the merchant is entitled to the amount of money taken, or fifty dollars, whichever is greater, and attorney fees and costs.
Source: SL 1994, ch 179, § 2.
23A-28-14. Release of certain information to victims of delinquent act of juvenile.
Upon written request of the victim of any act of juvenile delinquency, the prosecuting attorney shall provide the name and address of any child adjudicated to have committed the delinquent act and the name and address of the child's parents, guardian, or custodian.
The term, victim, means a person who is defined as a victim in subdivision 22-1-2(53) or in § 23A-28C-4, or, if the victim is a child, the victim's parents, guardian, or custodian.
Upon further written application and demonstration of need, the court may, in its discretion, order specified additional information to be disclosed to the victim.
Source: SL 1995, ch 136.
23A-28-15. Support for minor child victim--Vehicular homicide of parent.
If a defendant is convicted of vehicular homicide pursuant to § 22-16-41 and the deceased victim of the offense was a parent of a minor child, the sentencing court may order the defendant to pay restitution to each of the victim's children until each child reaches age eighteen, or age nineteen if the child is a full-time student in a secondary school.
The court shall consider all relevant factors in determining a support amount that is reasonable and necessary for the maintenance of each child, including:
(1) The financial needs and resources of the child;
(2) The financial needs and resources of the surviving parent, or if no other parent is alive or capable of caring for the child, the guardian of the child, including the state if the state is the guardian;
(3) The standard of living to which the child is accustomed;
(4) The physical and emotional condition of the child;
(5) The child's educational needs;
(6) The child's physical and legal custody arrangements; and
(7) The reasonable work-related childcare expenses of the surviving parent or guardian.
Pursuant to § 23A-28-7, a defendant ordered to pay support under this section shall make payments to the clerk of courts as trustee for remittance to the child's surviving parent or guardian. The child's surviving parent or guardian must expend the moneys for the benefit of the child. The clerk shall remit payment to the surviving parent or guardian within thirty business days of receipt by the clerk. The clerk shall deposit all payments no later than the next business day after receipt.
If a defendant ordered to pay support under this section is incarcerated and unable to pay the required support while incarcerated, the defendant has up to one year after release from incarceration to begin payment, including entering a payment plan to address any arrearage. If the defendant's support payments are set to terminate but the defendant's obligation is not paid in full, the support payments must continue until the entire arrearage is paid.
If a civil action is brought on behalf of a child against the defendant prior to a sentencing court ordering support payments as restitution under this section, and the child obtains a judgment in the civil action, the court may not order support under this section. If the sentencing court orders support under this section and the child later obtains a judgment in a civil action brought on behalf of the child, the court must offset the support order by the amount of the judgment awarded in the civil action pursuant to § 23A-28-9.
Source: SL 2024, ch 93, § 1.