14. Fernando Guarnero of Green Bay, Wisconsin claims $568.08 for refund of restitution and court costs deducted from his inmate account. Claimant was convicted in March 1999. At the time of his sentencing his Judgment of Conviction indicated that restitution was “to be determined.” In December 2000, claimant received a memo from the Department of Corrections indicating a restitution amount of $9,819.38 plus court costs. Claimant selected the “Disagree” box on the memo, which should have triggered a restitution hearing before the court. No restitution hearing was held, and claimant heard nothing further about any owed restitution until November 2016, when DOC began deducting the restitution money from his inmate account. Claimant filed a court action challenging the restitution on the grounds that he had never been given a restitution hearing. The court agreed that the restitution order was not valid and reduced the restitution amount to zero. Claimant believes that the restitution order was illegal, and that DOC should be required to refund the money previously taken from his account. Claimant points to State v. Minniecheske, which specifically states that the Claims Board is authorized to remedy these types of claims.
DOC recommends denial of this claim because the department was following the directives of a valid court order and was not negligent. DOC had no reason not to make restitution deductions from claimant’s account based on the restitution order. DOC is charged with the supervision of inmates, including their funds. Wis. Stat. § 301.32(1), authorizes DOC to use inmate funds “for the benefit of the prisoner” and paying down an inmate’s lawful debt is clearly to his benefit. DOC notes that 2015 Act 355 amended § 301.32 to expressly authorize DOC to use an inmate’s funds for payment towards applicable surcharges, victim restitution, or the benefit of the prisoner. DOC points to Division of Adult Institution Policy 309.45.02, which provides that if an inmate receives an amended Judgement of Conviction, DOC is not responsible to seek reimbursement from the entity that received the funds. DOC believes that doing so would revictimize the victim. DOC notes that although State v. Minniecheske, permits claimant to seek recovery from the Claims Board, that does not justify payment of the claim unless it is legally sufficient under Wis. Stats. § 16.007(5), which this claim is not. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
The Board concludes:
That the following identified claimants are denied:
Toyota Financial Savings Bank
Janari L. McKinnie
Frank T. Whitehead
Steven Joseph King
Michael A. Chesir
Alphoncy Dangerfield
Darren Wold
Marteze Harris
Kenneth R. Hunter
Dennis S. Rivers
Charles Wilson
Fernando Guarnero
That payment of the amounts below to the identified claimants from the following statutory appropriations is justified under § 16.007 (6)(b), Stats: Dated at Madison, Wisconsin this 8th day of June, 2018.
COREY FINKELMEYER
Chair, Representative of the Attorney General
CHRISTOPHER N. GREEN
Secretary, Representative of the Secretary of Administration
LUTHER OLSEN
Senate Finance Committee
MARY FELZKOWSKI
Assembly Finance Committee
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Referrals and Receipt of Committee Reports Concerning Proposed Administrative Rules
The joint committee for review of Administrative Rules reported and recommended:
Relating to wild life rehabilitation.
Relating to courses of study for and delegation to chiropractic technicians and chiropractic radiological technicians.
Relating to the Service Award Program.
Relating to an order of selection for vocational rehabilitation services.
STEPHEN NASS
Senate Chairperson
