973.20 Annotation
Sub. (11) (b) is based on prior s. 973.09 (1m) (d), stats.
973.20 Annotation
Sub. (12) (a) is based on prior s. 973.09 (1m) (a), stats.
973.20 Annotation
Sub. (12) (b) is based on prior s. 973.09 (1m) (c), stats.
973.20 Annotation
Sub. (12) (c) is based on prior s. 973.09 (1m) (cm), stats.
973.20 Annotation
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.
973.20 Annotation
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.
973.20 Annotation
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.
973.20 Annotation
Sub. (14) (a) to (c) is based on 18 USC 3664 (d) and prior s. 973.09 (1m) (a), stats.
973.20 Annotation
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).
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).
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 667,
573 N.W.2d 872 (Ct. App. 1997)
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 690,
573 N.W.2d 876 (Ct. App. 1997).
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).
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).
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).
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.
973.20 Annotation
Contributory negligence may not be raised as a defense to restitution. State v. Knoll, 2000 WI App 135,
237 Wis. 2d 384,
614 N.W.2d 20.
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.
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.
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.
973.20 Annotation
There is no statutory authority to order, as a condition of probation, payment of restitution obligations in a separate criminal case. State v. Torpen, 2001 WI App 273,
248 Wis. 2d 951,
637 N.W.2d 481.
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.
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.
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.
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.
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.
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.
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. The court must make a determination of the reasonable amount of restitution the defendant will be able to pay within the term of the sentence. 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 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, ___ Wis. 2d ___,
681 N.W.2d 354,
03-0300.
973.30
973.30
Sentencing commission. 973.30(1)
(1)
Duties. The sentencing commission shall do all of the following:
973.30(1)(a)
(a) Select an executive director having appropriate training and experience to study sentencing practices and prepare proposed sentencing guidelines.
973.30(1)(b)
(b) Monitor and compile data regarding sentencing practices in the state.
973.30(1)(c)
(c) Adopt advisory sentencing guidelines for felonies committed on or after July 30, 2002, to promote public safety, to reflect changes in sentencing practices and to preserve the integrity of the criminal justice and correctional systems.
973.30(1)(d)
(d) Provide information to the legislature, state agencies, and the public regarding the costs to and other needs of the department that result from sentencing practices.
973.30(1)(e)
(e) Provide information to judges and lawyers about the sentencing guidelines.
973.30(1)(f)
(f) Publish and distribute to all circuit judges hearing criminal cases an annual report regarding its work, which shall include all sentencing guidelines and all changes in existing sentencing guidelines adopted during the 12 months preceding the report.
973.30(1)(g)
(g) Study whether race is a basis for imposing sentences in criminal cases and submit a report and recommendations on this issue to the governor, to each house of the legislature under
s. 13.172 (2), and to the supreme court.
973.30(1)(h)
(h) Assist the legislature in assessing the cost of enacting new or revising existing statutes affecting criminal sentencing.
973.30(1)(i)
(i) At least semiannually, submit reports to all circuit judges, and to the chief clerk of each house of the legislature for distribution to the appropriate standing committees under
s. 13.172 (3), containing statistics regarding criminal sentences imposed in this state. Each report shall have a different focus and need not contain statistics regarding every crime. Each report shall contain information regarding sentences imposed statewide and in each of the following geographic areas:
973.30(1)(j)
(j) Study how sentencing options affect various types of offenders and offenses.
973.30(2)
(2) Staff. Subject to authorization under
s. 16.505, the sentencing commission may hire staff to assist it in the performance of its duties.
973.30(3)
(3) Sunset. This section does not apply after December 31, 2007.
973.30 History
History: 2001 a. 109;
2003 a. 321.
