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Nelson v. State

The RICO defendant failed to show by a preponderance of the evidence that he lacked the financial resources to pay the ordered amount of $725K in restitution.

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Leonard Nelson entered a negotiated plea of guilty to violation of OCGA § 16-14-4 a of the Georgia Racketeer Influenced and Corrupt Organizations Act, see OCGA § 16-14-1 et seq. “RICO”, and the trial court sentenced him to ten years probation. The trial court ordered as a condition of probation that Nelson pay a total of $725,000 in restitution to his victims. On appeal, Nelson contends that the trial court erred because he established by a preponderance of the evidence that he lacked the financial resources to pay restitution in the amount ordered. He also contends that the trial court erred in awarding restitution to the victim named in Counts 6 through 12 of the indictment because the trial court entered an order of nolle prosequi at the state’s request on those counts. We disagree and affirm for the reasons set forth below.

“Any dispute as to the proper amount or type of restitution shall be resolved by the ordering authority by the preponderance of the evidence.” OCGA § 17-14-7 b. On appeal, this Court reviews the record “to determine whether each party has met his or her specified burden and whether a restitution award was supported by the preponderance of the evidence.” Citation and punctuation omitted. In the Interest of E. W., 290 Ga. App. 95, 96 2 658 SE2d 854 2008. “It is well established that review of evidence by this Court is limited to questions of sufficiency.” Citation and punctuation omitted. Tindol v. State, 284 Ga. App. 45, 48 4 643 SE2d 329 2007.

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