AB134: Bill Text

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1995 - 1996 LEGISLATURE

1995 Assembly BILL 134

February 14, 1995 - Introduced by Representatives Krusick, Ainsworth, Bock, Brandemuehl, Carpenter, Dobyns, Goetsch, Grobschmidt, Grothman, Handrick, Hasenohrl, Kreibich, Ladwig, Musser, Nass, Notestein, Ott, Ryba, Schneiders, Seratti, Skindrud, Urban, Wasserman and Ziegelbauer, cosponsored by Senators Plewa, Farrow, Andrea, Buettner, Burke, Cowles, Darling, Fitzgerald, A. Lasee, Leean, C. Potter, Rosenzweig and Schultz. Referred to Committee on Judiciary.

AB134,1,3 An Act to amend 800.04 (2) (c), 800.09 (1) and 800.09 (2) (b); and to create 800.02 (2) (a) 8r., 800.03 (6), 800.04 (1) (b) 1. e., 800.094 and 911.01 (5) (c) of the statutes; relating to: restitution for graffiti vandalism.

Analysis by the Legislative Reference Bureau

Under current law, if a municipal court finds a person guilty of violating an ordinance that prohibits conduct that is the same or similar to conduct prohibited by a state statute that is punishable by a fine or imprisonment or both, the court may order the violator to pay restitution for damages to property or physical injury to a person. The amount of restitution may not exceed $200, except that in cases involving worthless checks and retail theft, the amount of restitution is limited only to the extent of the losses and expenses incurred by the persons injured by the action of the defendant.

This bill allows a municipal court to order the parent or legal guardian having custody and control of a minor to pay restitution if the minor violates an ordinance that prohibits marking, drawing or writing with paint, ink or other substance on the physical property of another without the other person's consent. The amount of the restitution may not exceed $5,000. The court may permit the parent or legal guardian to perform community service work instead of paying restitution.

For further information see the local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB134, s. 1 Section 1. 800.02 (2) (a) 8r. of the statutes is created to read:

AB134,2,6 800.02 (2) (a) 8r. Notice that if the court finds that the violation was committed by a minor and involves an ordinance that prohibits intentionally marking, drawing or writing with paint, ink or other substance on the physical property of another without the other person's consent, the court may summon the parent or legal guardian having custody and control of the minor into court to determine if restitution shall be ordered unders s. 800.094.

AB134, s. 2 Section 2. 800.03 (6) of the statutes is created to read:

AB134,2,11 800.03 (6) Notwithstanding sub. (1), a court appearance may be required if the court finds that the violation was committed by a minor and involves an ordinance that prohibits intentionally marking, drawing or writing with paint, ink or other substance on the physical property of another without the other person's consent.

AB134, s. 3 Section 3. 800.04 (1) (b) 1. e. of the statutes is created to read:

AB134,2,18 800.04 (1) (b) 1. e. That if the violation was committed by a minor and involves an ordinance that prohibits intentionally marking, drawing or writing with paint, ink or other substance on the physical property of another without the other person's consent, the court may summon the parent or legal guardian having custody and control of the minor into court to determine if restitution shall be ordered under s. 800.094.

AB134, s. 4 Section 4. 800.04 (2) (c) of the statutes is amended to read:

AB134,3,10 800.04 (2) (c) If the defendant has made a deposit under par. (b) or s. 800.03 and does not appear, he or she is deemed to have tendered a plea of no contest and submits to a forfeiture, a penalty assessment imposed by s. 165.87, a jail assessment imposed by s. 302.46 (1) and any applicable domestic abuse assessment imposed by s. 973.055 (1) plus costs, including the fee prescribed in s. 814.65 (1), not exceeding the amount of the deposit. The court may either accept the plea of no contest and enter judgment accordingly, or reject the plea and issue a summons. If the court finds that the violation meets the conditions in s. 800.093 (1), the court may summon the alleged violator into court to determine if restitution shall be ordered under s. 800.093. If the court finds that the violation meets the conditions in s. 800.094 (1), the court may summon the alleged violator and his or her parent or legal guardian into court to determine if restitution shall be ordered under s. 800.094. If the defendant or his or her parent or legal guardian fails to appear in response to the summons, the court shall issue a warrant under s. 968.09. If the defendant has made a deposit but does appear, the court shall allow the defendant to withdraw the plea of no contest.

AB134, s. 5 Section 5. 800.09 (1) of the statutes is amended to read:

AB134,3,21 800.09 (1) Judgment. If a municipal court finds a defendant guilty it may render judgment by ordering restitution under s. 800.093, or s. 800.094 if appropriate, and payment of a forfeiture, the penalty assessment imposed by s. 165.87, the jail assessment imposed by s. 302.46 (1) and any applicable domestic abuse assessment imposed by s. 973.055 (1) plus costs of prosecution, including the fee prescribed in s. 814.65 (1). The court shall apply any payment received on a judgment that includes restitution to first satisfy any payment of restitution ordered, then to pay the forfeiture, assessments and costs. If the judgment is not paid, the court may proceed under par. (a), (b) or (c) or any combination of those paragraphs, as follows:

AB134,4,12 (a) The court may defer payment of any judgment or provide for instalment payments. At the time the judgment is rendered, the court shall inform the defendant, orally and in writing, of the date by which restitution under s. 800.093 and the payment of the forfeiture, the penalty assessment, the jail assessment and any applicable domestic abuse assessment plus costs must be made, and of the possible consequences of failure to do so in timely fashion, including imprisonment, as provided in s. 800.095, or suspension of the defendant's motor vehicle operating privilege, as provided in par. (c), if applicable. If the defendant is not present, the court shall ensure that the information is sent to the defendant by mail. If restitution is ordered under s. 800.094, at the time that the judgment is rendered under this subsection, the court shall inform the parent or legal guardian subject to the restitution orally and in writing of the date when the restitution must be paid. If restitution is ordered under s. 800.094 and the parent or legal guardian is not present, the court shall ensure that the information is sent to the parent or legal guardian by mail. In 1st class cities, all of the written information required by this paragraph shall be printed in English and Spanish and provided to each defendant.

AB134,5,3 (b) If the parent or legal guardian agrees to perform community service work in lieu of making restitution or if the defendant agrees to perform community service work in lieu of making either restitution or paying the forfeiture, assessments and costs, or both, the court may order that the defendant, parent or legal guardian perform community service work for a public agency or a nonprofit charitable organization that is designated by the court. Community service work may be in lieu of restitution only if also agreed to by the public agency or nonprofit charitable organization and by the person to whom restitution is owed. The court may utilize any available resources, including any community service work program, in ordering the defendant, parent or legal guardian 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 by the minimum wage established under ch. 104 for adults in nonagriculture, nontipped employment. The court shall ensure that the defendant, parent or legal guardian is provided a written statement of the terms of the community service order and that the community service order is monitored.

AB134,5,13 (c) The court may suspend the defendant's operating privilege, as defined in s. 340.01 (40), until restitution is made under s. 800.093 and the forfeiture, assessments and costs are paid, if the defendant has not done so within 60 days after the date the restitution or payments or both are to be made under par. (a) and has not notified the court that he or she is unable to comply with the judgment, as provided under s. 800.095 (4) (a), except that the suspension period may not exceed 5 years. The court shall take possession of the suspended license and shall forward the license, along with a notice of the suspension clearly stating that the suspension is for failure to comply with a judgment of the court, to the department of transportation.

AB134, s. 6 Section 6. 800.09 (2) (b) of the statutes is amended to read:

AB134,6,4 800.09 (2) (b) If the person charged fails to appear personally or by an attorney at the time fixed for hearing of the case, the defendant may be deemed to have entered a plea of no contest and the money deposited, if any, or such portion thereof as the court determines to be an adequate penalty, plus the penalty assessment, the jail assessment and any applicable domestic abuse assessment plus costs, including the fee prescribed in s. 814.65 (1), may be declared forfeited by the court or may be ordered applied upon the payment of any penalty which may be imposed, together with the penalty assessment, the jail assessment and any applicable domestic abuse assessment plus costs. If the court finds that the violation meets the conditions in s. 800.093 (1), the court may summon the alleged violator into court to determine if restitution shall be ordered under s. 800.093. If the court finds that the violation meets the conditions in s. 800.094 (1), the court may summon the parent or legal guardian of the minor into court to determine if restitution shall be ordered under s. 800.094. Any money remaining after payment of any penalties, assessments, costs and restitution shall be refunded to the person who made the deposit.

AB134, s. 7 Section 7. 800.094 of the statutes is created to read:

AB134,6,13 800.094 Parental restitution for graffiti by minor. (1) The municipal court, in addition to ordering any payment authorized by law, may, if the violation was committed by a minor and involves an ordinance that prohibits intentionally marking, drawing or writing with paint, ink or other substance on the physical property of another without the other person's consent, order the parent or legal guardian having custody and control of the minor to make full or partial restitution to any person whose property was damaged or, if the person whose property was damaged is deceased, to his or her estate.

AB134,6,16 (2) Restitution ordered under this section is enforceable in a civil action by the person named in the order to receive restitution. A court may not order a parent or legal guardian to pay more than $5,000 in restitution under this section.

AB134,6,18 (3) The restitution order may require that the defendant do one or more of the following, subject to the $5,000 limit in sub. (2):

AB134,6,23 (a) Pay all special damages, but not general damages, including, but without limitation because of enumeration, the money equivalent of loss resulting from property destroyed or otherwise harmed and out-of-pocket losses that could be recovered in a civil action against the defendant for his or her conduct in the commission of the violation.

AB134,7,2 (b) Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom the violation was committed as a result of the commencement of the action or of cooperating in the investigation and prosecution of the violation.

AB134,7,5 (c) If justice so requires, reimburse any insurer, surety or other person who has compensated a person whose property was damaged for a loss otherwise compensable under this section.

AB134,7,12 (4) If the court orders that restitution be paid to more than one person, the court may direct the sequence in which payments are to be made. If more than one parent or legal guardian is ordered to make payments to the same person, the court may apportion liability between those ordered to pay or specify joint and several liability. If the court specifies that 2 or more persons are jointly and severally liable, the court shall distribute any overpayments so that each person who is ordered to pay, as closely as possible, pays the same proportion of the ordered restitution.

AB134,7,21 (5) Restitution ordered under this section does not limit or impair the right of a person whose property was damaged 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 person whose property was damaged 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 a parent or legal guardian.

AB134,7,23 (6) (a) The court, in determining whether to order restitution and the amount thereof, shall consider all of the following:

AB134,7,25 1. The amount of loss suffered by any person whose property was damaged as a result of the violation.

AB134,8,1 2. The financial resources of the parent or legal guardian.

AB134,8,2 3. The present and future earning ability of the parent or legal guardian.

AB134,8,4 4. The needs and earning ability of the dependents of the parent or legal guardian.

AB134,8,5 5. Any other factors which the court considers appropriate.

AB134,8,20 (b) 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 parent or legal guardian having custody and control of the minor defendant before the court or may summon the parent or legal guardian to appear to determine if restitution shall be ordered. The court shall give the person whose property was damaged an opportunity to present evidence and arguments pertaining to the factor specified in par. (a) 1. The court shall give the parent or legal guardian the opportunity to present evidence and arguments on the factors specified in par. (a). The person whose property was damaged has the burden of demonstrating by the preponderance of the evidence the amount of loss sustained as a result of the violation. The parent or legal guardian has the burden of demonstrating by the preponderance of the evidence the factors specified in par. (a) 2. to 5. 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.

AB134, s. 8 Section 8. 911.01 (5) (c) of the statutes is created to read:

AB134,9,3 911.01 (5) (c) When hearing evidence as to the factors that determine a restitution order under s. 800.094, the rules of evidence are subject to waiver under s. 800.094 (6) (b).

AB134,9,4 (End)