Harvey Waiver
In some California cases, you may find that the accused is charged with more than one criminal offense. To avoid these charges, a defendant may choose to enter into a plea bargain and plead guilty to the lesser charge, so long as the prosecutor drops the other charge. In situations like this, the prosecutor will request that the defendant sign a Harvey waiver.
What is a Harvey Waiver?
A Harvey waiver is an agreement in which the defendant agrees that any dismissed charges will still be considered during sentencing. This waiver was developed in the People v. Harvey case in 1979, where the California Supreme Court ruled that dismissed charges would not be considered against a criminal defendant during the sentencing phase of their case unless the defendant knowingly and voluntarily relinquished this right.
Thus, for the Harvey Waiver to be considered valid, the defendant must:
- Enter the waiver of their own free will
- Provide a factual basis for the waiver
- Be accepted by the court
Thus, if the defendant signs a Harvey waiver and all measures are taken to ensure its validity, a judge can consider all charges the defendant is accused of during sentencing. If the defendant doesn't sign the waiver, the judge will have to disregard the dismissed charges during sentencing.
The Harvey waiver was mainly put in place to ensure victim restitution even if the defendants charges were dropped.
How Does The Harvey Waiver Assist With Victim Restitution?
Victim restitution gives a victim the right to recuperate their financial losses that were caused by a criminal when committing a crime. Victims, in this case, refers to individuals who:
- Personally experienced a direct or threatened physical, psychological, or financial damages.
- The family of the person who experienced the damages.
- A business, government, or any other organization that has experienced damages.
For any of these aforementioned individuals to be considered victims and qualify for compensation. The damages suffered have to be caused by an accused during criminal activities.
Some of the losses a victim can claim retribution for include:
- Stolen, damaged, or destroyed property
- Harm done to a business or its property
- Hospital and therapy bills
- Lost pay that may have been incurred when the victim was unable to work due to the criminal offense
- Any logical attorney fees sustained as the victim tried to obtain their victim restitution.
The Harvey waiver makes it easier for a victim to get restitution even if the charges that would warrant their restitution get dismissed. Once the defendant signs a Harvey waiver, they renounce their right for judges to disregard their dismissed charges during sentencing. Thus, if the defendant has signed a Harvey waiver, the judge can still sentence the defendant to pay their victims restitution even for disregarded charges.
In California, the law state that the victims of crimes will be granted full compensation for all sensible expenses and losses gathered due to the crime committed. In some cases, to get their compensation a victim will have to attend a restitution hearing.
What Is A Restitution Hearing?
In situations where a victim is unsure how much money is owed for their losses, or the defendant wishes to challenge the amount demanded in compensation, a restitution hearing will be held. During this hearing, the burden of proof falls on the victim. They must provide substantial evidence showing that the losses were a direct result of the defendant's criminal acts.
Normally the victim will use bills, medical expenses, or business records to provide enough proof to qualify for restitution.
What About Civil Compromise?
A civil compromise is covered under California Penal Code Sections 1377 and 1378. These codes allow a judge to dismiss misdemeanor charges if the defendant fully repays the victim for any harm caused by the defendant's criminal actions.
Once the casualty is fully repaid for the harm caused, they will have to appear in the court where the criminal case was handled. They will then have to acknowledge before a judge that they have received their complete reimbursement from the defendant and have no intention to pursue criminal charges for the misdemeanor committed that caused them harm.
The judge will then decide whether to have the charges dismissed.
If you wish to know more about the Harvey waiver and how it can affect your case. We highly advise you to contact our law firm, and we will provide you all the information you need.
