A criminal defendant pled guilty to one count of stalking and NOLO to one count of aggressive driving and one count of improper passing, as a result of a road rage incident in Henry County. As alleged by the State at the sentencing hearing, the defendant, an acquaintance of the victim, was waiting in the parking lot when she got off work. When she began to drive home, the defendant followed her, until he passed her in a no-passing zone, sped in front of her, and then slammed on brakes causing her to rear-end him. The defendant fled the scene of the accident.

 

After the defendant entered his guilty plea, the State scheduled a restitution hearing. Restitution hearings are required when the victim of a crime claims monetary loss as a direct result of the crime. The goal of restitution is to make the victim whole. This is the amount of money that would likely be awarded to them through a civil lawsuit for the same damage. Restitution, in a criminal matter, is enforceable through the criminal sentence as a condition of probation. A violation of probation, including failing to pay, could result in incarceration. Proof of monetary damages from criminal action must be provided by the State by a preponderance of the evidence. OCGA § 17-14-7 (b). The amount of restitution should never exceed the amount of actual damages.

 

In cases where a vehicle is damaged, there must be evidence of the vehicles fair market value prior to the collision or resulting damage. The estimated or actual repair cost is insufficient. The State is required to show that the repair cost does not exceed the fair market value of the vehicle prior to the damage. In a situation where a vehicle with a $5,000 fair market value is struck and requires $10,000 of repair costs, a criminal defendant would only be responsible for reimbursing the fair market value of $5,000. The maximum amount of restitution recoverable in a criminal case is that which would be recoverable in a civil action.

 

At a restitution hearing, the State must provide evidence of the damage by a preponderance of the evidence. Testimony of the victim alone is rarely sufficient. An expert with knowledge and experience as to the fair market value of the item is required. A victim may not testify as to what anyone else has told them, including the fair market value or estimated or actual repair cost. All of that information would be hearsay, unless calculated by a victim with expertise and experience to do so.

 

In the case in Henry County, the State only called the victim to testify as to the estimate she received for repair costs. The criminal defense attorney did not object to the hearsay, so it was not an issue on review by the Court of Appeals. However, the State failed to provide any evidence of the fair market value of the vehicle prior to the damage. Even without that information, the judge ordered for the defendant to pay the full estimate of the repair costs provided by the victim. On appeal, the Court of Appeals found this to be in error and, in December of 2024, sent the case back to Henry County with instructions that the judge must assess the fair market value of the vehicle prior to the damage, to ensure that the repair costs as ordered do not exceed the value of the vehicle before the damage occurred.

 

The entire opinion can be read with the following citation: A24A1851. TRUSS v. THE STATE.