In determining the amount of restitution, the sentencing court will often delegate to the County Probation Department the responsibility to investigate the circumstances surrounding the crime and the criminal history and record of the offender, and to prepare a probation report for the court. When a victim has sustained losses, the report also contains a recommendation as to the appropriate amount of restitution to be awarded to the victim.
The responsibility to order restitution is that of a judge. Although the judge may delegate to the probation officer or others the function of arriving at the stipulated level of restitution, it is the sole responsibility of the judge to order the amount in court.
Plea bargaining is a practice in which a defendant in a criminal case is permitted to plead guilty to a lesser charge, thereby receiving a lighter sentence than if found guilty on the more serious charge and saving the state the effort and expense of a trial. However, the court may order restitution on dismissed counts when the negotiated disposition includes a Harvey Waiver. The waiver may also encompass unfiled charges. When it does, the court may base a restitution order on the defendant's uncharged offenses.