Restitution ordered under this section does not limit or impair the right of a victim to sue and recover damages from the defendant in a civil action. The fact that restitution was required or made is not admissible as evidence in that civil action and has no legal effect on the merits of the civil action. Any restitution made by payment or community service shall be set off against any judgment in favor of the victim in a civil action arising out of the facts or events that were the basis for the restitution. The court trying that civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant.
The court, in determining whether to order restitution and the amount thereof, shall consider all of the following:
The amount of loss suffered by any victim as a result of the violation.
The present and future earning ability of the defendant.
The needs and earning ability of the defendant's dependents.
If the court finds that the conditions in sub. (1)
are met, the court may hold the restitution hearing at the time of any appearance by the defendant before the court or may summon the defendant to appear to determine if restitution shall be ordered. The court shall give the victim an opportunity to present evidence and arguments pertaining to the factor specified in par. (a) 1.
The court shall give the defendant the opportunity to present evidence and arguments on the factors specified in par. (a)
. The victim has the burden of demonstrating by the preponderance of the evidence the amount of loss sustained as a result of the violation. The defendant has the burden of demonstrating by the preponderance of the evidence the factors specified in par. (a) 2.
When hearing evidence as to the factors specified in par. (a)
, the court may waive the rules of practice, procedure, pleading and evidence, except provisions relating to privileged communications and personal transactions or communication with a decedent or mentally ill person.
History: 1991 a. 40
; 1995 a. 156
Nonpayment of judgment or noncompliance with work order; further proceedings. 800.095(1)
Nonpayment or noncompliance.
If the defendant does not comply with the judgment of the court under s. 800.09 (1)
, fails to pay a driver improvement surcharge imposed under s. 346.655
or fails to comply with the community service work order under s. 800.09 (1) (b)
, the court shall issue a warrant to arrest the defendant and bring him or her before the court or a summons ordering the defendant to appear in court, or both. The defendant may be incarcerated prior to the court appearance.
The warrant shall be in the form specified under s. 800.02 (5)
. The summons shall be in substantially the following form:
STATE OF WISCONSIN
State of Wisconsin
THE STATE OF WISCONSIN TO THE DEFENDANT
A judgment, a copy of which is attached, has been entered against you for (restitution and) the payment of a civil forfeiture. You were ordered by the court on ...., .... (year) to (make the following payments: ....) (perform the following community service work order: ....) (make the following restitution: ....).
You have failed to comply with that order.
YOU ARE THEREFORE ORDERED to appear before the Honorable .... in .... Courtroom, at the .... Courthouse, in the City/Town/Village of .... at .... a.m./p.m. TO SHOW THAT YOU ARE UNABLE TO (PAY THE FORFEITURE OR MAKE RESTITUTION FOR GOOD CAUSE OR BECAUSE OF YOUR INDIGENCE) (TO COMPLY WITH THE COMMUNITY SERVICE WORK ORDER FOR GOOD CAUSE). If (good cause or your indigence has prevented you from paying the forfeiture or making restitution) (good cause has prevented you from complying with the community service work order), the court will modify the order.
IF YOU FAIL TO APPEAR AT THE TIME AND PLACE DESIGNATED ABOVE, AN ORDER FOR COMMITMENT SHALL BE ISSUED AND YOU WILL BE IMPRISONED IN THE JAIL/HOUSE OF CORRECTIONS. IN ADDITION, AN ORDER MAY BE ISSUED TO SUSPEND YOUR MOTOR VEHICLE OPERATING PRIVILEGE.
Dated: ...., .... (year)
(Municipal Court Judge)
In 1st class cities, all of the written information required for the summons form under par. (a)
shall be printed in Spanish on a separate sheet attached to the summons.
(3) Service of summons.
The summons authorized under sub. (1)
shall be served in the manner set forth under s. 800.01 (2)
If the defendant appears before the court pursuant to a warrant or summons issued under sub. (1)
or the defendant otherwise notifies the court that he or she is unable to comply with the judgment or community service work order, the court shall conduct a hearing. If the defendant failed to pay the forfeiture, make restitution or comply with the work order, the court shall determine if the defendant is unable to comply with the judgment for good cause or because of the defendant's indigence or is unable to comply with the work order for good cause.
If the defendant fails to appear before the court for a hearing conducted under par. (a)
or if the court determines at a hearing under par. (a)
that the failure of the defendant to comply with the judgment is not for good cause or because of the defendant's indigence or that the failure of the defendant to comply with the work order is not for good cause, the court shall order one of the following:
That the defendant be imprisoned until the forfeiture, assessments, surcharge and costs are paid, except that the defendant reduces the amount owed at a rate of at least $25 for each day of imprisonment, including imprisonment following an arrest but prior to the findings under this subsection, and the maximum period of imprisonment is 90 days.
That the payment schedule or judgment be modified, suspended or permanently stayed.
That the defendant perform community service work for a public agency or a nonprofit charitable organization designated by the court, except that the court may not order the defendant to perform community service work unless the defendant agrees to perform community service work and, if the community service work is in lieu of restitution, unless the person to whom the restitution is owed agrees. The court may utilize any available resources, including any community service work program, in ordering the defendant to perform community service work. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the forfeiture or restitution, or both, by the minimum wage established under ch. 104
for adults in nonagriculture, nontipped employment. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored.
That the defendant's operating privilege, as defined in s. 340.01 (40)
, be suspended until the judgment is complied with, except that the suspension period may not exceed 2 years. This subdivision does not apply if the forfeiture is assessed for violation of an ordinance that is unrelated to the violator's operation of a motor vehicle.
If the court determines that the failure of the defendant to comply with the judgment is for good cause or because of the defendant's indigence or that the failure of the defendant to comply with the work order is for good cause, the court may enter an order under par. (b) 2.
(5) Noncompliance; court order.
If the defendant fails to comply with the court order under sub. (4) (b) 2.
, the court may enter an order under sub. (4) (b) 1.
(6) Place of imprisonment.
If the court orders imprisonment under sub. (4) (b) 1.
, the defendant shall be committed to a jail or a house of correction in the county in which the cause of action arose or, if the defendant has been committed to the Wisconsin state prisons, to the prison in which the defendant is an inmate. Except in cases where the defendant has been committed to the Wisconsin state prisons, the municipality shall pay the expense incurred by the county to imprison the defendant. The defendant is eligible for privileges under s. 303.08
(7) Use of ordinary civil remedies.
In addition to the procedures under this section, a municipality may enforce the judgment in the same manner as for a judgment in an ordinary civil action.
(7m) Transfer of unclaimed money.
In addition to the procedures under this section, a municipal court may order the transfer of any of the defendant's money that the municipality is holding and that is unclaimed by the defendant for more than one year to pay any forfeitures that the defendant failed to pay the municipality.
(8) Applicability. Subsections (1)
and (4) (a)
apply to any judgment in forfeiture actions in municipal court for the violation of a traffic regulation if the court, at the time of rendering judgment, determines that incarceration may be ordered for subsequent noncompliance with the judgment and order.
Section 343.30 (5) does not preclude the suspension of operating privileges under s. 800.09 or 800.095. Suspension of operating privileges for failure to pay non-traffic forfeitures is not an unconstitutional exercise of the police power or an unconstitutionally excessive fine. City of Milwaukee v. Kilgore, 193 Wis. 2d 168
, 532 N.W.2d 690
Fees and costs in municipal court. 800.10(1)
Fees and costs in municipal court are prescribed in s. 814.65
All forfeitures, fees, penalty assessments, crime laboratories and drug law enforcement assessments, consumer information assessments, domestic abuse assessments and costs paid to a municipal court under a judgment before a municipal judge shall be paid to the municipal treasurer within 7 days after receipt of the money by a municipal judge or other court personnel. At the time of the payment, the municipal judge shall report to the municipal treasurer the title of the action, the offense for which a forfeiture was imposed and the total amount of the forfeiture, fees, penalty assessments, crime laboratories and drug law enforcement assessments, consumer information assessments, domestic abuse assessments and costs, if any. The treasurer shall disburse the fees as provided in s. 814.65 (1)
. All jail assessments paid to a municipal court under a judgment before a municipal judge shall be paid to the county treasurer within 7 days after receipt of the money by a municipal judge or other court personnel.
Municipal court record and transcript entries. 800.11(1)(1)
Every municipal judge shall keep a court record in which he or she shall enter, in actions to which they relate:
The title of every action commenced before the municipal judge, including the name and address of the defendant;
The process issued, date and place where it issued, when returnable and the return of the officer;
A brief statement of the charges, including the nature and time of the offense and the section of law violated;
Every adjournment, stating at whose request and to what time;
The names of witnesses sworn, stating at whose request;
The judgment rendered by the municipal judge, including the penalties imposed, the date and time of rendering judgment and the costs assessed in the action;
The amount of bail and names and addresses of sureties, if any;
The time of ordering any stay of execution;
The time of issuing execution and the name of the officer to whom delivered;
The return of every execution and when made and every renewal of an execution, with the date thereof;
The date and reason of removal of the action to another court;
The date of an appeal made from judgment; and
All motions made in the action, the decision thereon and all other proceedings in the action which the municipal judge may think useful.
Failure of the municipal judge to keep a court record properly shall not affect the jurisdiction of the municipal court or render the judgment void.
The transcript of judgment shall contain the following:
The name, address and vocation of defendant.
The certification that it is a true copy of the judgment.
If the municipal judge is elected under s. 755.01 (4)
, the judge shall keep separate court records for each municipality.
History: 1977 c. 305
; 1979 c. 32
, 92 (17)
; Stats. 1979 s. 800.11; 1985 a. 89
; 1995 a. 224
Judicial Council Committee's Note, 1977: Sub. (1) lists the various docket entries that are to be made by a municipal judge.
Sub. (2) makes clear that failure to properly docket a matter does not adversely affect the jurisdiction of a municipal court or a judgment rendered therein.
Sub. (3) lists the items that must be included in a transcript of judgment. [Bill 1240-A]
Relief from judgment. 800.115(1)
A defendant in an action involving a general statutory counterpart ordinance may move for relief from the judgment under s. 806.07 (1)
. Except as provided under sub. (2)
, the motion must be made no later than 6 months after the judgment was entered or the order or stipulation was made.
History: 1987 a. 389
Only a defendant may seek relief under this section. However a municipal court has the inherent authority to vacate a void judgment irrespective of the statute's requirements for reopening a judgment. City of Kenosha v. Jensen, 184 Wis. 2d 91
, 516 N.W.2d 4
(Ct. App. 1994).
Municipal court contempt procedure. 800.12(1)
A municipal judge may impose a sanction authorized under sub. (2)
for contempt of court, as defined in s. 785.01 (1)
, in accordance with the procedures under s. 785.03
A municipality may by ordinance provide that a municipal judge may impose a forfeiture for contempt under sub. (1)
in an amount not to exceed $50 or, upon nonpayment of the forfeiture, penalty assessment under s. 757.05
, jail assessment under s. 302.46
, crime laboratories and drug law enforcement assessment under s. 165.755
, any applicable consumer information assessment under s. 100.261
and any applicable domestic abuse assessment under s. 973.055 (1)
, a jail sentence not to exceed 7 days.
Recording in municipal court.