What Is A Harvey Waiver And How Is It Used With Restitution In A Criminal Case?

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“All right, a Harvey Waiver is a situation where a defendant has been charged with more than one count, or the possibility that there is an alternate case, another case that may get file against the client.”

“Oh, something in the future?”

“Something in the future, or actually that could be filed but the District Attorney hasn’t filed it because he’s wanting to resolve it all at once, in this particular case. Let’s use the example of a client of mine, in Stockton, who had four prior petty thefts, where she did prison terms for three of those. The client got a new arrest. I represented her. The District Attorney presented evidence to the Judge, while we were negotiating the resolution of this case, that my client had a ring of people, a daughter and a granddaughter, that she was using as part of the thefts of various stores. Walmart’s, Target stores, and so on. They believed that she was active throughout the county in about six or seven different cities. And they believed that the thefts from all of those stores, in separate locations, came to about $9,000. We resolved the case for a single petty theft charge, but the client agreed to this Harvey Waiver…that she would waive her right to reject the losses from the other cases, the prospect of cases that could have been charged against her. And she agreed to pay the $9,000 as part of her probation.”

“So she didn’t get charged on those other crimes, she just had to pay restitution on them.”

“Correct. Obviously, it was going to be a significant financial burden for her, but we felt it was much better for her to agree to pay that, than that she would refuse and we would force the District Attorney to file additional charges against her, which would make her more vulnerable to yet another prison term. So, that’s an example of a Harvey Waiver.

A variation on the theme is when the client has multiple counts, and several counts are being dismissed in light of the plea, if there was damage caused by any of the acts of those other charges that were dismissed, the client will then be asked to do a Harvey Waiver and pay restitution to the victims of those crimes, even though he or she is not pleading to those particular crimes.”

“So, it’s separating restitution from the actual penalty, the criminal penalty applied in that case.”

“Correct. And the idea was that restitution can be added from other charges that she was not pleading to, that she wasn’t getting a conviction for.”