973.20 Note
Sub. (14) (d) is new. It is intended to allow restitution disputes to be heard in an informal way so that parties may participate effectively without the need for legal counsel. Restitution hearings are not governed by the rules of evidence. State v. Pope,
107 Wis. 2d 726 (Ct. App. 1982). [87 Act 398]
973.20 Annotation
In the absence of objection to a restitution summary, when a defendant has received a copy, the trial court may assume that the amount is not in dispute and may order restitution on that basis. In such cases, the court need not make detailed findings under sub. (13) (c). State v. Szarkowitz,
157 Wis. 2d 740,
460 N.W.2d 819 (Ct. App. 1990).
973.20 Annotation
Under sub. (14) (b), the defendant has the burden of offering evidence concerning ability to pay. When the defendant fails to offer evidence, the trial court may order restitution without making detailed findings as to sub. (13) (a) 1. to 4. State v. Szarkowitz,
157 Wis. 2d 740,
460 N.W.2d 819 (Ct. App. 1990).
973.20 Annotation
Application of bail toward payment of restitution is not permitted. State v. Cetnarowski,
166 Wis. 2d 700,
480 N.W.2d 790 (Ct. App. 1992).
973.20 Annotation
Requiring a convicted defendant to deposit money for possible future counselling costs of victims was impermissible. State v. Handley,
173 Wis. 2d 838,
496 N.W.2d 725 (Ct. App. 1993).
973.20 Annotation
Restitution to a party with no relation on the record to the crime of conviction or to read-in crimes is improper. State v. Mattes,
175 Wis. 2d 572,
499 N.W.2d 711 (Ct. App. 1993).
973.20 Annotation
This section does not authorize restitution for non-pecuniary damages. State v. Stowers,
177 Wis. 2d 798,
503 N.W.2d 8 (Ct. App. 1993).
973.20 Annotation
Imposition of a restitution order after commencement of the defendant's jail sentence did not constitute double jeopardy. State v. Perry,
181 Wis. 2d 43,
510 N.W.2d 722 (Ct. App. 1993).
973.20 Annotation
The time period for determining restitution under sub. (13) (c) 2. is directory, not mandatory. State v. Perry,
181 Wis. 2d 43,
510 N.W.2d 722 (Ct. App. 1993).
973.20 Annotation
Restitution for read-in charges may be ordered without the defendant's personal admission to the read-in charge. State v. Cleaves,
181 Wis. 2d 73,
510 N.W.2d 143 (Ct. App. 1993).
973.20 Annotation
Sub. (1) imposes a mandatory duty on a court to provide for restitution; a sentence not providing restitution is illegal and subject to amendment to provide restitution. State v. Borst,
181 Wis. 2d 118,
510 N.W.2d 739 (Ct. App. 1993).
973.20 Annotation
Repayment to a police department of money used by the police to buy drugs from a defendant is not authorized by this section. State v. Evans,
181 Wis. 2d 978,
512 N.W.2d 259 (Ct. App. 1994).
973.20 Annotation
A restitution award for the repair or replacement cost of a stolen or damaged item is not limited to the fair market value of that item as determined by the jury. State v. Kennedy,
190 Wis. 2d 252,
528 N.W.2d 9 (Ct. App. 1994).
973.20 Annotation
In the absence of a specific objection at the time restitution is ordered, the trial court may proceed with the understanding that the defendant's silence is a constructive stipulation to the restitution, including the amount. State v. Hopkins,
196 Wis. 2d 36,
538 N.W.2d 543 (Ct. App. 1995),
94-0537.
973.20 Annotation
The expenses of fire-fighting and clean-up resulting from a crime could not be properly awarded to the county as restitution because the county did not have a direct relationship with the crime of record and was not a victim. State v. Schmaling,
198 Wis. 2d 757,
543 N.W.2d 555 (Ct. App. 1995).
973.20 Annotation
While a trial court may not, as part of a restitution order, assess general damages that compensate a victim for such things as pain and suffering, anguish, or humiliation, it may award as special damages any specific expenditure by the victim paid because of the crime. State v. Behnke,
203 Wis. 2d 43,
553 N.W.2d 265 (Ct. App. 1996),
95-1970.
973.20 Annotation
The term "any defense" in sub. (14) (b) does not mean all defenses available in a civil suit, but rather all defenses relating to the determination of loss sought to be compensated. The civil statute of limitations does not apply. State v. Sweat,
208 Wis. 2d 409,
561 N.W.2d 695 (1997),
95-1975.
973.20 Annotation
When a defendant defrauds people, reasonable attorney fees expended to recover losses from parties who are civilly or criminally liable may be awarded as restitution. State v. Anderson,
215 Wis. 2d 673,
573 N.W.2d 872 (Ct. App. 1997),
97-1600.
973.20 Annotation
That sub. (12) (a) requires issuing a single order covering all fines, assessments, costs, and restitution after a restitution hearing does not authorize the court to hold open all other financial terms of a previously imposed sentence while restitution is being imposed. State v. Perry,
215 Wis. 2d 696,
573 N.W.2d 876 (Ct. App. 1997),
97-0847.
973.20 Annotation
An order that a defendant liquidate his life insurance policies, withdraw funds from a pension fund, and pay the proceeds to the victims of his embezzlement crime was barred by federal law. State v. Kenyon,
225 Wis. 2d 657,
593 N.W.2d 491 (Ct. App. 1999),
98-1421.
973.20 Annotation
In an employee felony theft case, it was improper to order restitution for unearned benefits and vacation that were not "readily ascertainable pecuniary expenditures," the use of a vehicle that the employee had unrestricted personal use of, and the costs of recruiting and hiring a replacement for the defendant that resulted from the employee's resignation, and not from the theft. State v. Holmgren,
229 Wis. 2d 358,
599 N.W.2d 876 (Ct. App. 1999),
98-3405.
973.20 Annotation
A defendant is entitled to a hearing, although it may be informal, to challenge the existence of damage to the victim, as well as the amount of damage. If damage results from a criminal episode in which the defendant played any part, the defendant is jointly and severally liable in restitution for the amount of damages. State v. Madlock,
230 Wis. 2d 324,
602 N.W.2d 104 (Ct. App. 1999),
98-2718.
973.20 Annotation
For restitution to be ordered, a causal nexus between the crime and the disputed damage is required. The defendant's actions must be the precipitating cause of the injury, and the harm must have resulted from the natural consequences of the actions. State v. Canady,
2000 WI App 87,
234 Wis. 2d 261,
610 N.W.2d 147,
99-1457.
973.20 Annotation
There was no statutory authority for a restitution order that provided for payment from the defendant's prison earnings account, with the Department of Corrections to determine the specific amount. State v. Evans,
2000 WI App 178,
238 Wis. 2d 411,
617 N.W.2d 220,
99-2315.
973.20 Annotation
Medical Assistance is an insurer like any other for purposes of sub. (5) (d). Victims need not in each case present evidence of the state's obligation to or its subrogation rights. State v. Baker,
2001 WI App 100,
243 Wis. 2d 77,
626 N.W.2d 862,
99-3347.
973.20 Annotation
The definition of "victim" in s. 950.02 (4) (a) is applicable to sub. (1r). The mother of a child killed by a criminal act was a victim. The child's aunt was not. State v. Gribble,
2001 WI App 227,
248 Wis. 2d 409,
636 N.W.2d 488,
00-1821.
973.20 Annotation
There are 4 alternative procedures under sub. (13) (c) by which a court, at sentencing, can postpone the determination of restitution amounts. If a court constructs its own procedure to set restitution, the decision cannot stand. Nothing precludes remanding a case to the circuit court to allow it to properly determine restitution. State v. Krohn,
2002 WI App 96,
252 Wis. 2d 757,
643 N.W.2d 874,
01-1832.
973.20 Annotation
When salaried bank employees spent work time researching a forgery, the damage incurred by the bank was not the payment of wages, as the employees would have been paid the same sum regardless, but rather the loss of the value of its employees' services for the time that they were diverted from other work. That is a special damage recoverable in a civil proceeding and properly the subject of a restitution order under sub. (5). State v. Rouse,
2002 WI App 107,
254 Wis. 2d 761,
648 N.W.2d 507,
01-0774.
973.20 Annotation
Because there was a valid reason for exceeding the statutory time period set in sub. (13) (c) and because no prejudice resulted from the delay in the restitution proceedings, a circuit court's restitution order was not vacated as untimely. State v. Johnson,
2002 WI App 166,
256 Wis. 2d 871,
649 N.W.2d 284,
01-0382.
973.20 Annotation
A stepparent of a victim may not be awarded restitution under sub. (1r), but a security system purchased by a stepparent for the benefit of the victim was properly characterized as the victim's special damages that the stepfather compensated the victim for by paying for the system. The stepparent's lost wages for attending hearings in the case were not subject to the order as recovery of lost wages is limited to persons identified in sub. (5) (b). State v. Johnson,
2002 WI App 166,
256 Wis. 2d 871,
649 N.W.2d 284,
01-0382.
973.20 Annotation
When a defendant presents evidence of ability to pay, the trial court is not authorized to defer adjusting the amount of restitution based on ability to pay. State v. Loutsch,
2003 WI App 16,
259 Wis. 2d 901,
656 N.W.2d 781,
02-1755.
973.20 Annotation
In ordering restitution, the sentencing court must take a defendant's entire course of conduct into consideration and not break down the defendant's conduct into its constituent parts and ascertain whether one or more parts were a cause of the victim's damages. When the victim was abducted as he unlocked his car, the abduction left the car vulnerable to theft and damage, and the resulting damage was a clear consequence of the abduction. State v. Rash,
2003 WI App 32,
260 Wis. 2d 369,
659 N.W.2d 189,
02-0841.
973.20 Annotation
In a contractor fraud case, poor quality of the work actually performed under the contract is purely a civil wrong and the criminal restitution statute cannot be enlisted to remedy it nor to recover attorney fees under s 100.20 (5) for administrative code violations by a contractor. State v. Longmire,
2004 WI App 90,
272 Wis. 2d 759,
681 N.W.2d 354,
03-0300.
973.20 Annotation
Restitution orders from proceedings held outside the statutory time period for valid reasons may be upheld, provided that doing so will not result in prejudice to the defendant. When there were no demonstrable valid reasons for delaying the restitution determination hearing for 14 years and the delay inherently prejudiced the defendant, the trial court lacked the authority to order restitution. State v. Ziegler,
2005 WI App 69,
280 Wis. 2d 860,
695 N.W.2d 895,
04-0848.
973.20 Annotation
"Special damages" means any readily ascertainable pecuniary expenditure paid out because of the crime. Sub. (5) (a) contemplates that restitution will generally render actual civil litigation unnecessary. The ultimate question in deciding whether an item of restitution is "special damages" is whether the item is a readily ascertainable pecuniary expenditure attributable to the defendant's criminal conduct that could be recovered in a civil action. A restitution hearing is not the equivalent of a civil trial and does not require strict adherence to the rules of evidence and burden of proof. State v. Johnson,
2005 WI App 201,
287 Wis. 2d 381,
704 N.W.2d 625,
04-2059.
973.20 Annotation
Before a trial court may order restitution there must be a showing that the defendant's criminal activity was a substantial factor in causing pecuniary injury to the victim in a "but for" sense. "Substantial factor" denotes that the defendant's conduct has such an effect in producing the harm as to lead the trier of fact to regard it as a cause, using that word in the popular sense. A defendant cannot escape responsibility for restitution simply because his or her conduct did not directly cause the damage. State v. Johnson,
2005 WI App 201,
287 Wis. 2d 381,
704 N.W.2d 625,
04-2059.
973.20 Annotation
Lost profits are recoverable as special damages. It is not necessary to have an established contract in order to demonstrate the necessary causal link between the defendant's criminal activity and claimed lost profits. When negotiations are under way and appear likely to succeed, interference with them has been considered to be a tort of interference with a prospective contractual relation. The victim must prove with reasonable certainty that the prospective contractual relationship would have accrued absent the defendant's wrongful conduct. Due weight may be given to the fact that the defendant's wrongful conduct created any speculation or uncertainty. State v. Johnson,
2005 WI App 201,
287 Wis. 2d 381,
704 N.W.2d 625,
04-2059.
973.20 Annotation
When the restitution amount was not set until approximately one year after a civil judgment was entered, it was appropriate to reopen the civil judgment to allow consideration of that issue. A full hearing was required to determine whether the outstanding restitution order has been included in the calculation of the civil settlement. Herr v. Lanaghan,
2006 WI App 29,
289 Wis. 2d 440,
710 N.W.2d 496,
05-0422.
973.20 Annotation
A civil settlement agreement can have no effect upon a restitution order while the defendant is on probation unless the circuit court first finds that continued enforcement of the restitution order would result in a double recovery for the victim. After a defendant is released from probation and any unpaid restitution becomes a civil judgment, however, a settlement agreement between the victim and the defendant may preclude the victim from enforcing the judgment. Huml v. Vlazny,
2006 WI 87,
293 Wis. 2d 169,
716 N.W.2d 807,
04-0036.
973.20 Annotation
This section does not limit the consideration of a defendant's ability to pay out of funds derived from only earnings or wages. "Financial resources" refers to all financial resources available to the defendant at the time of the restitution order, including gifted funds, except where otherwise provided by law. State v. Greene,
2008 WI App 100,
313 Wis. 2d 211,
756 N.W.2d 411,
07-0269.
973.20 Annotation
When the amount of restitution was set at judgment and the initial order in this case was timely, the defendant was not prejudiced by an amended order that only clarified when he would be required to start paying the restitution established in the original order. The amended order did not violate double jeopardy principles. State v. Greene,
2008 WI App 100,
313 Wis. 2d 211,
756 N.W.2d 411,
07-0269.
973.20 Annotation
The circuit court had the authority to order the defendant to reimburse his mother for forfeited bail his mother paid, either as restitution or as a condition of extended supervision. State v. Agosto,
2008 WI App 149,
314 Wis. 2d 385,
760 N.W.2d 415,
06-2646.
973.20 Annotation
This section authorizes a trial court to order restitution to victims of a crime considered at sentencing, which includes any crime for which the defendant was convicted and any read-in crime. Here, an officer was injured while pursuing a person charged with armed robbery and not with fleeing an officer, assaulting an officer, or any crime related to his flight from the officer. Accordingly, the officer was not a victim of a crime considered at sentencing, and neither he nor the insurance company that paid expenses related to his injuries can receive restitution. State v. Lee,
2008 WI App 185,
314 Wis. 2d 764,
762 N.W.2d 431,
08-0390.
973.20 Annotation
When a court has considered the defendant's ability to pay in setting restitution, the length of the term of probation or of the sentence does not have any limiting effect on the total amount of restitution that may be ordered. In providing for converting unpaid restitution to civil judgments, it seems clear that the legislature recognized that there would be circumstances where all the necessary restitution amounts often would not and could not be paid before the completion of the sentence or probationary period. State v. Fernandez,
2009 WI 29,
316 Wis. 2d 598,
764 N.W.2d 509,
07-1403.
973.20 Annotation
The school district was the direct victim of a bomb threat directed against a school. During the time that the students and staff were evacuated from school district property as a result of a bomb scare the school district paid its employees, but received no services from them. Under Rouse and sub. (5) (a), the district is entitled to restitution for that loss of employee productivity. State v. Vanbeek,
2009 WI App 37,
316 Wis. 2d 527,
765 N.W.2d 834,
08-1275.
973.20 Annotation
There are two components to the question of whether restitution can be ordered. The claimant must be a "direct victim" of the crime and there must be a causal connection between the defendant's conduct and harm suffered by the claimant. When the defendant damaged a residence rented from the claimant by making unauthorized alternations constructing and operating a marijuana growing operation, the claimant was a direct victim of the crime and the growing operation was the substantial factor in causing the damages incurred. State v. Hoseman,
2011 WI App 88,
334 Wis. 2d 415,
799 N.W.2d 479,
10-1362.
