OPINION
COCHRAN, J.,
delivered the opinion of the unanimous Court.
We address the following question: When the record is clear that the trial judge orally made restitution a part of the sentence, but either the amount or the person(s) to.whom it is owed is unclear, incorrect, or insufficient, should the restitution order be deleted or should the case remanded to the trial court for a hearing on restitution? We hold that, in such a case, appellate courts should vacate the faulty order and remand for a new restitution hearing.
Appellant was convicted of misapplication of fiduciary property in excess of $200,000, sentenced to 14 years’ confinement, and given a $10,000 fine. The trial court orally pronounced at the end of the sentencing hearing that appellant would owe restitution, but he did not specify the amount. The next day, the trial judge entered an order for $591,000 restitution in the written judgment. The court of appeals vacated the order and remanded the case to the trial court for a restitution hearing.
Appellant claims that the appel
late court should have simply deleted the restitution order.
We agree with the court of appeals that remanding the case for a formal restitution hearing is proper because this practice is consistent with our case law and adequately protects a defendant’s due-process rights while providing justice to victims.
I.
The State alleged that appellant was involved in an elaborate Ponzi scheme. The record shows that he operated two programs in tandem. First, with his Credit Home Investment Program, appellant would lease-purchase a home, and then sell the contract rights to an investor for a profit. He promised the investors that they could immediately sell their newly acquired homes to downstream purchasers for a profit.
Second, through his Down Payment Assistance Program, appellant supplied the initial investors with home buyers who, if they lacked sufficient credit or down payment, could receive loans from appellant to obtain a mortgage. Appellant persuaded a separate pool of investors to provide the funds for this second program by promising $2,500 profit for every $10,000 invested. Appellant thus generated his own supply of home buyers and investors to make his Credit Home Investment Program profitable.
However, if the targeted home buyers from the Down Payment Assistance Program were not approved for mortgages, they could not purchase houses from the investors in the Credit Home Investment Program, and those investors were left with the mortgage payments. Appellant initially used funds from the Down Payment Assistance Program to pay the investors’ mortgage payments, but he eventually ran out of money.
A jury convicted appellant of misapplication of fiduciary property in excess of $200,000. At the end of the punishment hearing, and immediately after sending the jury to deliberate, the trial judge stated,
On the record. I am going to need the State to prepare a proposed order of restitution in the case, probably with some sort of supporting memorandum to justify whatever number you come up with. You can rely on everything that was introduced in the case. We don’t need to have a hearing on it as far as an evidentiary hearing, but if y’all can’t come up with an agreed figure, then we will need to have a hearing on it at some point in the future, okay? And the sooner, the better.
The jury assessed punishment at fourteen years’ confinement and a $10,000 fine. The trial judge formally pronounced the sentence, and before adjourning, he stated, “The sooner we can get that restitution matter taken care of, the better.” The next day, in the absence of the parties, without a hearing, and without any agreement by the parties, the trial judge en
tered a restitution order for $591,000
into the written judgment.
On appeal, appellant argued that the restitution order should be deleted because restitution was not orally pronounced in open court. However, the appellate court did not originally reach this claim because it held that the issue had not been preserved for appeal.
.We reversed because appellant had had no opportunity to object to the written order, and we remanded the case to decide if the trial judge erred by “including a restitution order in the written judgment; or, in the alternative, whether the trial court impermissibly included ... losses from victims not named in the indictment.”
On remand, the court of appeals vacated the restitution order and remanded the case to the trial court for a restitution hearing.
The court explained that it was improper to delete the restitution because both parties knew that some amount of restitution was proper, the only question was how much.
II.
Restitution is a victim’s statutory right,
and it serves a number of important purposes. First, it restores the victim to the “status quo ante” position he was in before the offense.
Second, restitution serves as appropriate punishment for the convicted criminal. We have said, “[a]s punishment, restitution attempts to redress the wrongs for which a defendant has been charged and convicted in court.”
Third, because restitution forces the offender to “address and remedy the specific harm that he has caused,”
it aids in the rehabilitation process as “it forces the defendant to confront, in concrete terms, the harm his actions have caused.”
Fourth, restitution acts as a deterrent to crime.
Indeed, the law so favors crime victims’ compensation that our restitution statute requires the trial judge to justify his decision
not
to order restitution to a crime victim.
Further, the statute provides that a parole panel “shall order the payment of restitution ordered” under Article 42.087, and it may
revoke a defendant’s parole or mandatory supervision if he fails to comply with the trial judge’s restitution order.
For all of these reasons, we have interpreted restitution statutes liberally to effectuate fairness to the victims of crime.
On the other hand, fairness to the defendant requires that his sentence be “pronounced orally in his presence.”
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OPINION
COCHRAN, J.,
delivered the opinion of the unanimous Court.
We address the following question: When the record is clear that the trial judge orally made restitution a part of the sentence, but either the amount or the person(s) to.whom it is owed is unclear, incorrect, or insufficient, should the restitution order be deleted or should the case remanded to the trial court for a hearing on restitution? We hold that, in such a case, appellate courts should vacate the faulty order and remand for a new restitution hearing.
Appellant was convicted of misapplication of fiduciary property in excess of $200,000, sentenced to 14 years’ confinement, and given a $10,000 fine. The trial court orally pronounced at the end of the sentencing hearing that appellant would owe restitution, but he did not specify the amount. The next day, the trial judge entered an order for $591,000 restitution in the written judgment. The court of appeals vacated the order and remanded the case to the trial court for a restitution hearing.
Appellant claims that the appel
late court should have simply deleted the restitution order.
We agree with the court of appeals that remanding the case for a formal restitution hearing is proper because this practice is consistent with our case law and adequately protects a defendant’s due-process rights while providing justice to victims.
I.
The State alleged that appellant was involved in an elaborate Ponzi scheme. The record shows that he operated two programs in tandem. First, with his Credit Home Investment Program, appellant would lease-purchase a home, and then sell the contract rights to an investor for a profit. He promised the investors that they could immediately sell their newly acquired homes to downstream purchasers for a profit.
Second, through his Down Payment Assistance Program, appellant supplied the initial investors with home buyers who, if they lacked sufficient credit or down payment, could receive loans from appellant to obtain a mortgage. Appellant persuaded a separate pool of investors to provide the funds for this second program by promising $2,500 profit for every $10,000 invested. Appellant thus generated his own supply of home buyers and investors to make his Credit Home Investment Program profitable.
However, if the targeted home buyers from the Down Payment Assistance Program were not approved for mortgages, they could not purchase houses from the investors in the Credit Home Investment Program, and those investors were left with the mortgage payments. Appellant initially used funds from the Down Payment Assistance Program to pay the investors’ mortgage payments, but he eventually ran out of money.
A jury convicted appellant of misapplication of fiduciary property in excess of $200,000. At the end of the punishment hearing, and immediately after sending the jury to deliberate, the trial judge stated,
On the record. I am going to need the State to prepare a proposed order of restitution in the case, probably with some sort of supporting memorandum to justify whatever number you come up with. You can rely on everything that was introduced in the case. We don’t need to have a hearing on it as far as an evidentiary hearing, but if y’all can’t come up with an agreed figure, then we will need to have a hearing on it at some point in the future, okay? And the sooner, the better.
The jury assessed punishment at fourteen years’ confinement and a $10,000 fine. The trial judge formally pronounced the sentence, and before adjourning, he stated, “The sooner we can get that restitution matter taken care of, the better.” The next day, in the absence of the parties, without a hearing, and without any agreement by the parties, the trial judge en
tered a restitution order for $591,000
into the written judgment.
On appeal, appellant argued that the restitution order should be deleted because restitution was not orally pronounced in open court. However, the appellate court did not originally reach this claim because it held that the issue had not been preserved for appeal.
.We reversed because appellant had had no opportunity to object to the written order, and we remanded the case to decide if the trial judge erred by “including a restitution order in the written judgment; or, in the alternative, whether the trial court impermissibly included ... losses from victims not named in the indictment.”
On remand, the court of appeals vacated the restitution order and remanded the case to the trial court for a restitution hearing.
The court explained that it was improper to delete the restitution because both parties knew that some amount of restitution was proper, the only question was how much.
II.
Restitution is a victim’s statutory right,
and it serves a number of important purposes. First, it restores the victim to the “status quo ante” position he was in before the offense.
Second, restitution serves as appropriate punishment for the convicted criminal. We have said, “[a]s punishment, restitution attempts to redress the wrongs for which a defendant has been charged and convicted in court.”
Third, because restitution forces the offender to “address and remedy the specific harm that he has caused,”
it aids in the rehabilitation process as “it forces the defendant to confront, in concrete terms, the harm his actions have caused.”
Fourth, restitution acts as a deterrent to crime.
Indeed, the law so favors crime victims’ compensation that our restitution statute requires the trial judge to justify his decision
not
to order restitution to a crime victim.
Further, the statute provides that a parole panel “shall order the payment of restitution ordered” under Article 42.087, and it may
revoke a defendant’s parole or mandatory supervision if he fails to comply with the trial judge’s restitution order.
For all of these reasons, we have interpreted restitution statutes liberally to effectuate fairness to the victims of crime.
On the other hand, fairness to the defendant requires that his sentence be “pronounced orally in his presence.”
A written judgment is simply the “declaration and embodiment” of that pronouncement.
Therefore, when there is a conflict between the oral pronouncement and the written judgment, the oral pronouncement controls.
A trial judge has neither the statutory authority nor the discretion to orally pronounce one sentence in front of the defendant, but then enter a different written judgment outside the defendant’s presence.
Rather, due process requires that the defendant be given fair notice of all of the terms of his sentence, so that he may object and offer a defense to any terms he believes are inappropriate.
The appellant then has a “legitimate expectation” that the punishment he heard at trial match the punishment he actually receives.
We have held that the deletion of a written restitution order is appropriate in at least two scenarios. The first scenario is when the trial judge does not have statutory authority to impose the specific restitution order. For example, a court has no authority to order restitution for injuries or damages for which the defen
dant is not responsible.
And a trial judge does not have authority to order restitution to anyone except the victim(s) of the offense for which the defendant is convicted.
The second scenario in which deletion of a restitution order is appropriate is when the trial judge is authorized to assess restitution, but the evidence does not show proximate cause between the defendant’s criminal conduct and the victim’s injury.
Put another way, due process places three limitations on the restitution a trial judge may order: (1) the restitution ordered must be for only the offense for which the defendant is criminally responsible; (2) the restitution must be for only the victim or victims of the offense for which the defendant is charged; and (3) the amount must be just and supported by a factual basis within the record.
In this third situation — if there is a lack of a sufficient factual basis— appellate courts should vacate and remand the ease for a restitution hearing because the trial judge is authorized to assess restitution, but the amount of restitution is not (yet) supported by the record.
This is in keeping with the liberal public-policy purpose of Article 42.037, which favors restitution to crime victims.
Other state
and federal courts embrace the principle that vacating a restitution order and remanding the case to the trial court for a restitution hearing is appropriate when the record lacks sufficient evidence of the damages.
Of course, if the parties agree on a restitution amount through stipulation or a plea deal, that agreement itself is a sufficient factual basis to support the restitution order.
With that general background, we turn to the issue in the present case.
III.
The trial judge in this case orally pronounced the “fact” of restitution at sen-fencing, but he did not state an amount. He told both parties that, if they could not agree upon a restitution amount,
there would need to be a restitution hearing, and said, “The sooner we can get that restitution matter taken care of, the better.” This colloquy clearly put the defendant on notice that restitution was part of his sentence.
This case is not like those in which neither the parties nor the judge ever mentioned restitution during the sentencing hearing or as part of the oral pronouncement of sentence.
In those cases, the defendant was never put on notice
that restitution might be ordered until it first appeared in the written judgment. That scenario leaves the defendant without notice and incapable of objecting or preparing a defense to the restitution order. That procedure — failing to mention restitution until its entry in the written judgment — also violates a defendant’s legitimate expectation that the sentence actually received is the same as that orally pronounced in open court. In effect, the restitution order popped up unexpectedly in the written judgment. In those cases, the defendant was entitled to have the restitution order deleted because the •written judgment did not match the oral pronouncement of sentence.
In this case, however, restitution was part of the trial judge’s oral pronouncement of sentence. The evidence at trial showed that a significant amount of restitution was a certainty as eighteen victims testified to losses exceeding $591,000. There is no dispute that appellant is criminally responsible for the offense of misapplication of fiduciary property. There is no dispute that the losses were caused by the defendant’s criminal conduct. There is no dispute that restitution under Article 42.037 is authorized. And there is no dispute that the trial judge told the defendant when orally pronouncing his sentence that restitution would be ordered.
The problem in this case is that appellant was never told of the specific amount of restitution in open court and given an opportunity to challenge the sufficiency of the evidence or the specific amount of restitution due to each victim.
This case more comfortably falls within that body of our case law in which the trial judge has the authority to order restitution and did order restitution, but the evidence is insufficient to support the restitution amount ordered.
In those cases, there was never a question about the defendant’s responsibility for restitution. Rather, the relevant question was what the restitution amount should be. In those cases, we vacated the restitution orders and remanded the cases for a hearing in which the parties could offer evidence, object, and reach an accurate restitution amount.
Because the trial judge in this case made restitution a part of his oral pronouncement of sentence, the restitution order should not be deleted. Instead, the case should be remanded to the trial court for a hearing in which appellant will have the opportunity to object to the amount, introduce evidence to support his position, and exercise all of his due process rights. He is entitled to what the sentencing judge promised him: a restitution hearing if the parties themselves could not agree on the amount of restitution. Notably, had the parties agreed to a specific restitution amount and had that amount been entered into the record, the need to remand could
have been avoided and appellant’s trip in the appellate orbit could have ended years ago.
We agree with the court of appeals that it is appropriate to remand a case for a restitution hearing when it is clear during the sentencing hearing that restitution will be ordered, but the amount or recipients of restitution are not orally pronounced. We therefore affirm the judgment of the court of appeals.