Pursuant to O.C.G.A. § 17-14-3 (a), the judge is authorized in sentencing a defendant to make a finding as to the amount of restitution due any victim. In the event that an appropriate restitution amount has not been established at the time of sentencing, the judge "shall set a date for a hearing to determine restitution." There is no statutory mandate as to when the restitution hearing must occur. Williams v. State, 311 Ga. App. 152 (2011). The amount of any restitution is determined at a restitution hearing using a preponderance of the evidence standard. Turner v. State, 312 Ga. App. 799 (2011); O.C.G.A. § 17-14-9;
Elsasser v. State, 313 Ga. App. 661 (2012).
The State has the burden of proof to show the amount of loss sustained by the victim. O.C.G.A. § 17-14-7(b); Futch v. State, 314 Ga. App. 294 (2012).
The restitution owed cannot exceed the victim's damages. O.C.G.A. § 17-14-9. The award must also be based upon fair market value. Hawthorne v. State, 285 Ga. App. 196 (2007). evidence" test, set forth in Blockburger v. United States, 284 U. S. 299 (1932) to determine when convictions should merge. Under this test, "the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Hopkins v. State, A14A0908; Crowley v. State, 315 Ga. App. 755 (2012); Washington v. State, 310 Ga. App. 725
(2011).
A course of conduct can result in multiple violations of the same statute. For example, fleeing from several officers can result in multiple charges of fleeing and attempting to elude. The test to be used to determine if the convictions merge requires determining the “unit of prosecution” or the precise act or conduct involved under the statute. Smith v. State, 290 Ga. 768 (2012).
If one crime is committed prior to the other crime, there is no merger. Brown v. State, 314 Ga. App. 198 (2012); McKenzie v. State, 302 Ga. App. 538 (2010). If during a continuous crime spree the defendant commits a crime against multiple victims, the defendant may be convicted once of possession of a firearm during commission of a crime as to every individual victim. Mason v. State, 312 Ga. App. 723
Damages recoverable through restitution are “all damages which a victim could recover against an offender in a civil action based on the same act or acts for which the offender is sentenced.” Wilder v. State, 314 Ga. App. 905 (2012); Burke v. State, 201 Ga. App. 50 (1991).
Restitution can be ordered even if the sentence does not include probation. Callahan v. State, 317 Ga. App. 513 (2012).