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 Restitution does not include reimbursement for collateral expenses incurred in the normal course of law enforcement as the law enforcement agency is not a victim. State v. Storlie, 2002 WI App 163, 256 Wis. 2d 500, 643 N.W.2d 874, 01-3376. See also State v. Haase, 2006 WI App 86, 293 Wis. 2d 322, 716 N.W.2d 526, 05-0987.
973.20 Annotation In addition to replacement costs, reasonable rental fees incurred by a victim may be part of a restitution award. State v. Kayon, 2002 WI App 178, 256 Wis. 2d 577, 649 N.W.2d 331, 01-2365.
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 A victim's loss of sick leave is special damages under sub. (5) (a). A court has authority to award restitution for sick leave the victim used. 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.
973.20 Annotation The eventual recovery of stolen property does not satisfy the defendant's restitution obligation. Here, at the time a stolen vehicle was recovered, the victim had been compensated by its insurer, and the circumstances made return of the vehicle impractical. The circuit court's determination that the insurer was entitled to compensation for the losses it incurred in fulfilling its obligation to its insureds in a manner consistent with its business practice was reasonable. State v. Gibson, 2012 WI App 103, 344 Wis. 2d 220, 822 N.W.2d 500, 11-1760.
973.20 Annotation The defendant in this possession of child pornography case was not liable for restitution to the child victim. Before restitution can be ordered there must be a causal nexus between the crime considered at sentencing and the damage. The child victim's mother testified only as to the loss of income resulting from her husband's initial abuse of her children in creating the pornography. No evidence was presented from which the court could reasonably infer that the viewing and possession of the daughter's image by the defendant or others caused any of the income loss for which the mother sought restitution. State v. Tarlo, 2016 WI App 81, 372 Wis. 2d 333, 887 N.W.2d 898, 15-1502.
973.20 Annotation The statutory term “crime considered at sentencing" is defined in broad terms. It encompasses all facts and reasonable inferences concerning the defendant's activity related to the crime for which the defendant was convicted, not just those facts necessary to support the elements of the specific charge of which the defendant was convicted. When determining, whether there is a causal nexus between the victim's claimed damage and the crime considered at sentencing, a court should take a defendant's entire course of conduct into consideration. In this case, the “crime considered at sentencing" included burglaries of the victim's home that the court found the defendant had committed prior to the date of the underlying crime even though proof of those burglaries was not necessary to sustain the defendant's conviction. State v. Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, 15-2320.
973.20 Annotation Sub. (11) (c) and s. 301.32 (1) codify common law by specifically authorizing the Department of Corrections to take restitution from an inmate's account at an amount or a percentage the department determines is reasonable for payment to victims. State v. Williams, 2018 WI App 20, 380 Wis. 2d 440, 909 N.W.2d 177, 17-0320.
973.20 Annotation A circuit court, acting as a sentencing court, lacks the competency to address an allegedly improper disbursement of funds by the Department of Corrections under sub. (11) (c) or s. 301.32 (1). Once an inmate is sentenced to prison, the inmate is under the control of the executive branch and must address any objections to the internal operating procedures of the department and then, if necessary, by writ of certiorari to the circuit court. State v. Williams, 2018 WI App 20, 380 Wis. 2d 440, 909 N.W.2d 177, 17-0320.
973.20 Annotation The circuit court's finding that the victim met her burden under sub. (14) (a) in proving the amount of loss resulting from a crime considered at sentencing was not clearly erroneous. First, the victim met her burden to prove “the amount of loss sustained." Second, the defendant pled guilty to burglarizing the victim's home on a particular date. Third, there was no evidence presented at the restitution hearing that either the defendant or anyone else had stolen any of the listed items from the victim's home on days other than that date. State v. Wiskerchen, 2019 WI 1, 385 Wis. 2d 120, 921 N.W.2d 730, 16-1541.
973.20 AnnotationArticle I, section 9m, of the Wisconsin Constitution provides for restitution only insofar as the legislature confers that right through statute. The legislature makes restitution available to crime victims under this section and other statutes, but crime victims are not guaranteed restitution in every instance. Sub. (12) (b) makes clear that restitution payments take priority over specific statutory fees, surcharges, fines, and costs, but the priority scheme does not include supervision fees under s. 304.074. OAG 2-15.
973.25 973.25 Certificates of qualification for employment.
973.25(1)(1)Definitions. In this section:
973.25(1)(a) (a) “Certificate of qualification for employment” means a certificate issued by the council on offender employment that provides an offender with relief from a collateral sanction, except that it does not provide relief from s. 48.685 (5m), 50.065 (4m), or 111.335 (3) (a), (b), (c), or (e) or (4) (h) or (i).
973.25(1)(b) (b) “Collateral sanction” means a penalty, ineligibility, disability, or disadvantage that is related to employment or to occupational licensing or certification and that is a result of the offender's criminal record. “Collateral sanction” does not include confinement in a jail or prison; probation, parole, or extended supervision; suspension or revocation of motor vehicle operating privileges; imposition of a forfeiture, fine, or assessment; costs of prosecution; or an order to pay restitution.
973.25(1)(c) (c) “Offender” means a person who has been convicted of a crime other than a violent crime, as defined in s. 165.84 (7) (ab).
973.25(2) (2)Council on offender employment. The director of state courts shall provide forms for use in filing an application for a certificate of qualification for employment and shall convene a council on offender employment that shall review applications for certificates of qualification for employment. The council shall consist of the following 3 members: the attorney general, or his or her designee; the state public defender, or his or her designee; and the chairperson of the parole commission, or his or her designee. The council shall have the powers, duties, and responsibilities set forth in this section.
973.25(3) (3)Eligibility. An offender who has been released from confinement may apply for a certificate of qualification for employment under this section if any of the following applies:
973.25(3)(a) (a) He or she has served at least 24 consecutive months of a term of confinement in prison in the Wisconsin state prisons.
973.25(3)(b) (b) He or she has served at least 12 consecutive months of a term of confinement in prison in the Wisconsin state prisons and at least 12 consecutive months of a term of extended supervision under s. 302.113.
973.25(4) (4)Procedure.
973.25(4)(a) (a) An offender may file an application for a certificate of qualification for employment with the council on offender employment on a form to be provided by the director of state courts along with an application fee of $20 that shall be deposited in the appropriation under s. 20.625 (1) (h). The council may waive the fee if the offender submits an affidavit along with the application in which he or she swears or affirms that he or she is unable to pay the application fee.
973.25(4)(b) (b) After receiving an application under par. (a), the council on offender employment shall request from the department of corrections and the department shall provide to the council all of the following information about the offender:
973.25(4)(b)1. 1. His or her highest level of education.
973.25(4)(b)2. 2. Any treatment he or she has completed.
973.25(4)(b)3. 3. Any performance evaluations for his or her work.
973.25(4)(b)4. 4. Any risk and needs assessment reports.
973.25(4)(b)5. 5. Any other reports of information gathered during the normal course of business, as requested by the council.
973.25(4)(c) (c) Within 60 days after receiving the information requested under par. (b), the council on offender employment shall issue an order granting or denying the offender's request for a certificate of qualification for employment.
973.25(5) (5)Granting of certificate; exceptions. The council on offender employment shall grant an offender's application for a certificate of qualification for employment if the council finds that the offender is not likely to pose a risk to public safety, that the certificate will substantially assist the offender in obtaining employment or occupational licensing or certification, and that the offender is less likely to commit an additional criminal offense if he or she obtains a certificate of qualification for employment.
973.25(6) (6)Revocation of certificate of qualification for employment.
973.25(6)(a)(a) If an offender is convicted of a felony or of a Class A or Class B misdemeanor after he or she is issued a certificate of qualification for employment, or if his or her probation, parole, or extended supervision is revoked for the commission of a crime, the court shall permanently revoke a certificate of qualification for employment issued under sub. (5).
973.25(6)(b) (b) The court may not revoke an offender's certificate of qualification for employment as a sanction for the offender's commission of an act or offense that is a violation of a condition of the offender's probation, parole, or extended supervision that is not a crime, or if the offender's probation, parole, or extended supervision is revoked as a result of the offender's commission of a noncriminal act.
973.25(7) (7)Admissibility of a certificate of qualification for employment in a fair employment proceeding. A certificate of qualification for employment issued under sub. (5) is not admissible as evidence in a proceeding alleging an act of discrimination on the basis of conviction record under subch. II of ch. 111.
973.25(8) (8)Data collection; report to legislature. The department of corrections shall prepare an annual report that includes, for each year, the number of applications that are received under this section, the number of certificates of qualification for employment that are issued, and the number of certificates of qualification for employment that are revoked and the reasons for revocation. The department shall submit the report to the chief clerk of each house of the legislature for distribution to the legislature under s. 13.172 (2).
973.25 History History: 2019 a. 123; s. 35.17 correction in (1) (c), (4) (a), (7).
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 186 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on August 1, 2020. Published and certified under s. 35.18. Changes effective after August 1, 2020, are designated by NOTES. (Published 8-1-20)