8.22No Remission of Restitution
A.Conviction or Adjudication is Set Aside
Under the Setting Aside Convictions Act (SACA), MCL 780.621 et seq., a defendant who successfully moves to set aside his or her conviction under MCL 780.621,1 or whose conviction is automatically set aside under MCL 780.621g, is not entitled to remission of restitution that is paid as a consequence of the conviction that is set aside.2 See MCL 780.622(2), which prevents a defendant whose conviction has been set aside from recouping “any fine, costs, or other money paid as a consequence of [the] conviction that is set aside.”3
Similarly, the SACA “does not relieve any obligation to pay restitution owed to the victim of a crime nor does it affect the jurisdiction of the convicting court or the authority of any court order with regard to enforcing an order for restitution.” MCL 780.622(7).
If a juvenile successfully moves to set aside his or her adjudication, he or she is not entitled to remission of restitution that is paid as a consequence of the adjudication that is set aside.4 See MCL 712A.18e(11)(a), which prevents a juvenile who successfully moves to set aside an adjudication from recouping “any fine, costs, or other money paid as a consequence of [the] adjudication that is set aside.”5
Under certain circumstances, the court must reinstate convictions that had been set aside. MCL 780.621h(1). If a defendant has had a conviction automatically set aside under MCL 780.621g and “the court determines that the individual has not made a good-faith effort to pay the ordered restitution[,]” the court on its own motion or on a motion by a person owed restitution must reinstate the conviction that was automatically set aside. MCL 780.621h(3). Before reinstating a conviction under MCL 780.621h(3) when a defendant fails to make a good-faith effort to pay restitution, the court must give notice and an opportunity to be heard on the matter. MCR 6.451(A).
B.Restitution Order is Reversed
Although the Revised Judicature Act requires a court to award restitution plus interest of any amount of money collected on any judgment or decree that is later reversed, see MCL 600.1475, because the trial court acts “as a conduit in channeling [a] defendant’s [criminal] restitution payments to the victim[, i]t d[oes] not have the restitutional amount in its possession and therefore [the county] ha[s] no statutory duty to refund it to [the] defendant[]” on reversal of the restitution order.6 People v Diermier, 209 Mich App 449, 451 (1995).
1 This provision also applies to convictions that are set aside under MCL 780.621e (misdemeanor marijuana offenses) if the conditions specified in MCL 780.621e are satisfied. MCL 780.622(1)-(2). See 2020 PA 192 and 2020 PA 193, effective April 11, 2021.
2 But see Nelson v Colorado, 581 US 128, 134 (2017) (holding that a Colorado statute requiring a petitioner to “prove [his or] her innocence by clear and convincing evidence to obtain [a] refund of costs, fees, and restitution paid pursuant to an invalid conviction[] . . . does not comport with [the Fourteenth Amendment’s guarantee of] due process[]”). It is unclear whether the Nelson holding applies to the setting aside of a conviction under MCL 780.622(2). See SCAO Memorandum, Refunding of Assessments if Conviction Invalidated, for additional discussion.
3 For additional information on setting aside convictions, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 3.
4 But see Nelson v Colorado, 581 US128, 134 (2017) (holding that a Colorado statute requiring a petitioner to “prove [his or] her innocence by clear and convincing evidence to obtain [a] refund of costs, fees, and restitution paid pursuant to an invalid conviction[] . . . does not comport with [the Fourteenth Amendment’s guarantee of] due process[]”). It is unclear whether the Nelson holding applies to the setting aside of an adjudication under MCL 712A.18e(11)(a). See SCAO Memorandum, Refunding of Assessments if Conviction Invalidated, for additional discussion.
5 For additional information on setting aside adjudications, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 21.
6 But see Nelson v Colorado, 581 US 128, 130 (2017) (finding that “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur, . . . the State [is] obliged to refund . . . restitution exacted from the defendant upon, and as a consequence of, the conviction[]”) (emphasis added). See SCAO Memorandum, Refunding of Assessments if Conviction Invalidated, for additional discussion.