Any order under sub. (5) (c)
shall require that all restitution to victims under the order be paid before restitution to other persons.
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 transferred under sub. (11) (a)
. If more than one defendant is ordered to make payments to the same person, the court may apportion liability between the defendants or specify joint and several liability. If the court specifies that 2 or more defendants are jointly and severally liable, the department or the clerk to whom payments are made under sub. (11) (a)
shall distribute any overpayments so that each defendant, as closely as possible, pays the same proportion of the ordered restitution.
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 facts that restitution was required or paid are not admissible as evidence in a civil action and have no legal effect on the merits of a 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 which were the basis for the restitution. The court trying the civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant.
If a crime victim is paid an award under subch. I of ch. 949
for any loss arising out of a criminal act, the state is subrogated to the rights of the victim to any restitution required by the court. The rights of the state are subordinate to the claims of victims who have suffered a loss arising out of the offenses or any transaction which is part of the same continuous scheme of criminal activity.
When restitution is ordered, the court shall inquire to see if an award has been made under subch. I of ch. 949
and if the department of justice is subrogated to the cause of action under s. 949.15
. If the restitution ordered is less than or equal to the award under subch. I of ch. 949
, the restitution shall be credited to the appropriation account under s. 20.455 (5) (hh)
. If the restitution ordered is greater than the award under subch. I of ch. 949
, an amount equal to the award under subch. I of ch. 949
shall be credited to the appropriation account under s. 20.455 (5) (hh)
and the balance shall be paid to the victim.
When restitution is ordered, the court shall inquire to see if recompense has been made under s. 969.13 (5) (a)
. If recompense has been made and the restitution ordered is less than or equal to the recompense, the restitution shall be applied to the payment of costs and, if any restitution remains after the payment of costs, to the payment of the judgment. If recompense has been made and the restitution ordered is greater than the recompense, the victim shall receive an amount equal to the amount of restitution less the amount of recompense and the balance shall be applied to the payment of costs and, if any restitution remains after the payment of costs, to the payment of the judgment. This subsection applies without regard to whether the person who paid the recompense is the person who is convicted of the crime.
The court may require that restitution be paid immediately, within a specified period or in specified installments. If the defendant is placed on probation or sentenced to imprisonment, the end of a specified period shall not be later than the end of any period of probation, extended supervision or parole. If the defendant is sentenced to the intensive sanctions program, the end of a specified period shall not be later than the end of the sentence under s. 973.032 (3) (a)
The department or the clerk of court may certify an amount owed under par. (a)
to the department of revenue if any of the following apply:
The court required that restitution be paid immediately and more than 30 days have passed since the order was entered.
The court required that restitution be paid within a specified period and more than 30 days have passed since the expiration of that period.
The court required that restitution be paid in specified installments and the defendant is delinquent in making any of those payments.
Except as otherwise provided in this paragraph, the restitution order shall require the defendant to deliver the amount of money or property due as restitution to the department for transfer to the victim or other person to be compensated by a restitution order under this section. If the defendant is not placed on probation or sentenced to prison, the court may order that restitution be paid to the clerk of court for transfer to the appropriate person. The court shall impose on the defendant a restitution surcharge under ch. 814
equal to 5 percent of the total amount of any restitution, costs, attorney fees, court fees, fines, and surcharges ordered under s. 973.05 (1)
and imposed under ch. 814
, which shall be paid to the department or the clerk of court for administrative expenses under this section.
The department shall establish a separate account for each person in its custody or under its supervision ordered to make restitution for the collection and disbursement of funds. A portion of each payment constitutes the surcharge for administrative expenses under par. (a)
If a defendant who is in a state prison or who is sentenced to a state prison is ordered to pay restitution, the court order shall require the defendant to authorize the department to collect, from the defendant's wages and from other moneys held in the defendant's prisoner's account, an amount or a percentage the department determines is reasonable for payment to victims.
Each clerk of court who collects restitution under this section shall notify the department when a defendant has satisfied an order for restitution.
The department and each clerk of court that collects restitution under this section shall annually submit a report to the legislature under s. 13.172 (2)
that specifies, for each fiscal year, the total amounts of restitution ordered for the department and each clerk of court to collect, the administrative fee the department and each clerk of court collects under par. (a)
, and the amounts of restitution collected by the department and by the clerk of court and dispersed to victims.
If the court orders restitution in addition to the payment of fines, costs, fees, and surcharges under ss. 973.05
and ch. 814
, it shall set the amount of fines, costs, fees, and surcharges in conjunction with the amount of restitution and issue a single order, signed by the judge, covering all of the payments and any amounts due under s. 304.074
. If the costs for legal representation by a private attorney appointed under s. 977.08
or the fees due under s. 304.074
are not established at the time of issuance of the order, the court may revise the order to include those costs at a later time.
Except as provided in par. (c)
, payments shall be applied first to satisfy the ordered restitution in full, then to pay any fines or surcharges under s. 973.05
, then to pay costs, fees, and surcharges under ch. 814
other than attorney fees and finally to reimburse county or state costs of legal representation.
If a defendant is subject to more than one order under this section and the financial obligations under any order total $50 or less, the department or the clerk of court, whichever is applicable under sub. (11) (a)
, may pay these obligations first.
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 a crime considered at sentencing.
The present and future earning ability of the defendant.
The needs and earning ability of the defendant's dependents.
The district attorney shall attempt to obtain from the victim prior to sentencing information pertaining to the factor specified in par. (a) 1.
Law enforcement agencies, the department of corrections and any agency providing services under ch. 950
shall extend full cooperation and assistance to the district attorney in discharging this responsibility. The department of justice shall provide technical assistance to district attorneys in this regard and develop model forms and procedures for collecting and documenting this information.
The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. The court shall give the defendant the opportunity to stipulate to the restitution claimed by the victim and to present evidence and arguments on the factors specified in par. (a)
. If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation. In other cases, the court may do any of the following:
Order restitution of amounts not in dispute as part of the sentence or probation order imposed and direct the appropriate agency to file a proposed restitution order with the court within 90 days thereafter, and mail or deliver copies of the proposed order to the victim, district attorney, defendant and defense counsel.
Adjourn the sentencing proceeding for up to 60 days pending resolution of the amount of restitution by the court, referee or arbitrator.
With the consent of the defendant, refer the disputed restitution issues to an arbitrator acceptable to all parties, whose determination of the amount of restitution shall be filed with the court within 60 days after the date of referral and incorporated into the court's sentence or probation order.
Refer the disputed restitution issues to a circuit court commissioner or other appropriate referee, who shall conduct a hearing on the matter and submit the record thereof, together with proposed findings of fact and conclusions of law, to the court within 60 days of the date of referral. Within 30 days after the referee's report is filed, the court shall determine the amount of restitution on the basis of the record submitted by the referee and incorporate it into the sentence or probation order imposed. The judge may direct that hearings under this subdivision be recorded either by audio recorder or by a court reporter. A transcript is not required unless ordered by the judge.
At any hearing under sub. (13)
, all of the following apply:
The burden of demonstrating by the preponderance of the evidence the amount of loss sustained by a victim as a result of a crime considered at sentencing is on the victim. The district attorney is not required to represent any victim unless the hearing is held at or prior to the sentencing proceeding or the court so orders.
The burden of demonstrating, by the preponderance of the evidence, the financial resources of the defendant, the present and future earning ability of the defendant and the needs and earning ability of the defendant's dependents is on the defendant. The defendant may assert any defense that he or she could raise in a civil action for the loss sought to be compensated. The office of the state public defender is not required to represent any indigent defendant unless the hearing is held at or prior to the sentencing proceeding, the defendant is incarcerated when the hearing is held or the court so orders.
The burden of demonstrating, by the preponderance of the evidence, such other matters as the court deems appropriate is on the party designated by the court, as justice requires.
All parties interested in the matter shall have an opportunity to be heard, personally or through counsel, to present evidence and to cross-examine witnesses called by other parties. The court, arbitrator or referee shall conduct the proceeding so as to do substantial justice between the parties according to the rules of substantive law and may waive the rules of practice, procedure, pleading or evidence, except provisions relating to privileged communications and personal transactions or communication with a decedent or mentally ill person or to admissibility under s. 901.05
. Discovery is not available except for good cause shown. If the defendant is incarcerated, he or she may participate by telephone under s. 807.13
unless the court issues a writ or subpoena compelling the defendant to appear in person.
If misappropriation, from a cemetery, of an object that indicates that a deceased was a veteran, as described in s. 45.001
, is a crime considered at sentencing, the restitution order shall require that the defendant reimburse an individual, organization, or governmental entity for the cost of replacing the object.
Judicial Council Note, 1987: Sub. (1) allows restitution to be ordered although the defendant is not placed on probation. It allows restitution to be made payable to the estate of a deceased victim. It requires restitution ordered to be a condition of probation or parole served by the defendant for the offense. Finally, it allows restitution unpaid at the time probation or parole supervision terminates to be enforced by the victim as a judgment creditor. See 18 USC 3662 (a), (c) and (h).
Sub. (2) is patterned on 18 USC 3663 (b) (1) and prior s. 973.09 (1r), stats.
Sub. (3) is patterned on 18 USC 3663 (b) (2). Paragraph (d) is patterned on s. 949.06 (1) (b) 3., stats.
Sub. (4) is patterned on 18 USC 3663 (b) (3).
Sub. (5) (a) and (b) is based on prior s. 973.09 (8) (a) and (b), stats. A new provision allows the court to order restitution of income lost by the victim while participating in the investigation and prosecution of the offense.
Sub. (5) (c) is new. It allows the court to order restitution of rewards paid for information which helps solve or prosecute the offense.
Sub. (5) (d) carries forward the provision of prior s. 973.09 (1) (b), stats., allowing restitution to insurers, sureties, etc.
Sub. (6) is based on 18 USC 3663 (e) (1).
Sub. (7) is new. It allows the court to direct the order of payment when there is more than one victim, and to apportion liability when more than one defendant is ordered to make restitution to the same person, or to specify joint and several liability.
Sub. (10) is based on 18 USC 3663 (f).
Sub. (11) (a) is based on prior s. 973.09 (1) (b) and (1m) (c), stats.
Sub. (11) (b) is based on prior s. 973.09 (1m) (d), stats.
Sub. (12) (a) is based on prior s. 973.09 (1m) (a), stats.
Sub. (12) (b) is based on prior s. 973.09 (1m) (c), stats.
Sub. (12) (c) is based on prior s. 973.09 (1m) (cm), stats.
Sub. (13) (a) is patterned on 18 USC 3664 (a). Prior s. 973.09 (1m) (a), stats., similarly required the court to consider the defendant's ability to pay when determining the amount of restitution.
Sub. (13) (b) is new. It makes the district attorney primarily responsible for obtaining information relating to the amount of loss suffered by any crime victim. Law enforcement, probation and parole, and victim assistance agencies must cooperate with the district attorney in this regard. The department of justice is directed to develop model forms and procedures for collecting victim loss data. See legislative audit bureau report No. 85-10, April 15, 1985, at 14-18.
Sub. (13) (c) creates several optional procedures for resolving disputes over the amount of restitution without resort to a judicial evidentiary hearing as provided by prior s. 973.09 (1m) (b), stats. First, the defendant may stipulate to the district attorney's determination of the amount of victim loss, while reserving the right to seek a lower amount of restitution based on ability-to-pay factors. Second, the court may hear the dispute at the sentencing proceeding, or adjourn the matter for later hearing prior to imposing sentence. Third, the court may order restitution of items not in dispute, referring disputed issues for subsequent resolution. Fourth, the court, with the consent of the parties, may refer disputed restitution issues to an arbitrator, whose determination is final and binding. Fifth, the court may appoint a referee to conduct fact-finding into the disputed restitution issues, whose proposed findings must be presented to the court within 60 days.
Sub. (14) (a) to (c) is based on 18 USC 3664 (d) and prior s. 973.09 (1m) (a), stats.
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]
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).
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).
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).
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).
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).
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).
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).
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).
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).
Sub. (1) [now sub. (1r)] 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).
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).
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).
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
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).
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
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
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
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
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
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
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
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