Amendment AA2-AB455

1997 - 1998 LEGISLATURE

ASSEMBLY AMENDMENT 2, TO 1997 ASSEMBLY BILL 455

November 6, 1997 - Offered by Representative Krug.

AB455-AA2,1,1 At the locations indicated, amend the bill as follows:

AB455-AA2,1,3 1. Page 1, line 11: after "juvenile" insert "or by a parent who has custody of a juvenile".

AB455-AA2,1,4 2. Page 4, line 3: after that line insert:

AB455-AA2,1,5 " Section 3m. 895.035 (2m) (a) of the statutes is amended to read:

AB455-AA2,2,12 895.035 (2m) (a) If a child or a parent with custody of a child fails to pay restitution under s. 938.245, 938.32, 938.34 (5), 938.343 (4) or, 938.345 or 938.45 (1r) (a) as ordered by a court assigned to exercise jurisdiction under chs. 48 and 938 or a municipal court or as agreed to in a deferred prosecution agreement or if it appears likely that the child or parent will not pay restitution as ordered or agreed to, the victim, the victim's insurer, the representative of the public interest under s. 938.09 or the agency, as defined in s. 938.38 (1) (a), supervising the child may petition the court assigned to exercise jurisdiction under chs. 48 and 938 to order that the amount of restitution unpaid by the child or parent be entered and docketed as a judgment against the child and the parent with custody of the child and in favor of the victim or the victim's insurer, or both. A petition under this paragraph may be filed after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence under which the restitution is payable, but no later than one year after the expiration of the deferred prosecution agreement, consent decree, dispositional order or sentence or any extension of the consent decree, dispositional order or sentence. A judgment rendered under this paragraph does not bar the victim or the victim's insurer, or both, from commencing another action seeking compensation from the child or the parent, or both, if the amount of restitution ordered under this paragraph is less than the total amount of damages claimed by the victim or the victim's insurer.

AB455-AA2, s. 3p Section 3p. 895.035 (6) of the statutes is amended to read:

AB455-AA2,2,16 895.035 (6) Any recovery of restitution under this section shall be reduced by the amount recovered as restitution for the same act under s. 938.245, 938.32, 938.34 (5) or, 938.343 (4) or 938.45 (1r) (a).".

AB455-AA2,2,19 3. Page 6, line 2: after "payment." insert "Any recovery under this paragraph shall be reduced by the amount recovered as restitution for the same act under par. (am).".

AB455-AA2,3,2 4. Page 6, line 5: after "restitution." insert "Except for recovery for retail theft under s. 943.51, a deferred prosecution agreement may not require a parent who has custody, as defined in s. 895.035 (1), of a juvenile to make more than the amount specified in s. 799.01 (1) (d) in restitution for any damage, injury or death resulting from any one act of the juvenile or from the same act committed by 2 or more juveniles in the custody of that parent.".

AB455-AA2,3,3 5. Page 7, line 13: after that line insert:

AB455-AA2,3,4 " Section 12m. 938.245 (2t) (am) of the statutes is created to read:

AB455-AA2,3,17 938.245 (2t) (am) If the act for which the deferred prosecution agreement is being entered into has resulted in damage to or loss or destruction of the property of another, in bodily injury to another excluding pain and suffering or in death and if the intake worker, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile, the deferred prosecution agreement may, subject to par. (c), require the parent who has custody, as defined in s. 895.035 (1), of the juvenile to make reasonable restitution for the damage, injury or death as provided in pars. (d) to (h). Any order under this paragraph shall include a determination that the parent who has custody of the juvenile is financially able to pay the amount ordered and may allow up to the date of the expiration of the deferred prosecution agreement for the payment. Any recovery under this paragraph shall be reduced by the amount recovered as restitution for the same act under par. (a).".

AB455-AA2,3,19 6. Page 7, line 17: after "juvenile" insert "or the parent who has custody, as defined in s. 895.035 (1), of the juvenile".

AB455-AA2,3,21 7. Page 8, line 3: after "juvenile" insert "or the parent who has custody, as defined in s. 895.035 (1), of the juvenile".

AB455-AA2,3,23 8. Page 8, line 17: after "juvenile" insert "or the parent who has custody, as defined in s. 895.035 (1), of the juvenile".

AB455-AA2,4,2 9. Page 8, line 22: after "juvenile" insert "or the parent who has custody, as defined in s. 895.035 (1), of the juvenile".

AB455-AA2,4,4 10. Page 9, line 5: after "juvenile" insert "or the parent who has custody, as defined in s. 895.035 (1), of the juvenile".

AB455-AA2,4,5 11. Page 9, line 18: after that line insert:

AB455-AA2,4,6 " Section 17g. 938.245 (2t) (i) of the statutes is created to read:

AB455-AA2,4,12 938.245 (2t) (i) 1. If a victim of the act for which the deferred prosecution agreement is entered into is paid an award under ch. 949 for any loss arising out of the 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 delinquent activity.

AB455-AA2,4,19 2. When restitution is ordered, the court shall inquire to determine if an award has been made under 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 ch. 949, the restitution shall be paid only to the general fund. If the restitution ordered is greater than the award under ch. 949, the general fund shall receive an amount equal to the award under ch. 949 and the balance shall be paid to the victim.".

AB455-AA2,4,20 12. Page 10, line 14: after "restitution" insert "by a juvenile".

AB455-AA2,4,23 13. Page 10, line 18: after "decree." insert "Any recovery under this paragraph shall be reduced by the amount recovered as restitution for the same act under par. (am).".

AB455-AA2,5,6 14. Page 10, line 21: after "restitution." insert "Except for recovery for retail theft under s. 943.51, a judge or juvenile court commissioner may not order a parent who has custody, as defined in s. 895.035 (1), of a juvenile to make more than the amount specified in s. 799.01 (1) (d) in restitution for any damage, injury or death resulting from any one act of the juvenile or from the same act committed by 2 or more juveniles in the custody of that parent.".

AB455-AA2,5,7 15. Page 10, line 22: after that line insert:

AB455-AA2,5,8 " Section 20m. 938.32 (1t) (am) of the statutes is created to read:

AB455-AA2,5,24 938.32 (1t) (am) If the petition alleges that the juvenile committed a delinquent act that has resulted in damage to or loss or destruction of the property of another, in bodily injury to another excluding pain and suffering or in death and if the judge or juvenile court commissioner, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile, the judge or juvenile court commissioner may, subject to par. (c), require the parent who has custody, as defined in s. 895.035 (1), of the juvenile, as a condition of the consent decree, to make reasonable restitution for the damage, injury or death as provided in pars. (d) to (h). Any consent decree that includes a condition of restitution by a parent who as custody of the juvenile shall include a finding that the parent who has custody of the juvenile is financially able to pay the amount ordered any may allow up to the date of the expiration of the consent decree for the payment. Objection by the parent to the amount of damages claimed shall entitle the parent to a hearing on the question of damages before the amount of restitution is made part of the consent decree. Any recovery under this paragraph shall be reduced by the amount recovered as restitution for the same act under par. (a).".

AB455-AA2,6,2 16. Page 11, line 2: after "juvenile" insert "or the parent who has custody, as defined in s. 895.035 (1), of the juvenile".

AB455-AA2,6,4 17. Page 11, line 12: after "juvenile" insert "or the parent who has custody, as defined in s. 895.035 (1), of the juvenile".

AB455-AA2,6,6 18. Page 12, line 2: after "juvenile" insert "or the parent who has custody, as defined in s. 895.035 (1), of the juvenile".

AB455-AA2,6,8 19. Page 12, line 7: after "juvenile" insert "or the parent who has custody, as defined in s. 895.035 (1), of the juvenile".

AB455-AA2,6,10 20. Page 12, line 13: after "juvenile" insert "or the parent who has custody, as defined in s. 895.035 (1), of the juvenile".

AB455-AA2,6,11 21. Page 13, line 2: after that line insert:

AB455-AA2,6,12 " Section 26g. 938.32 (1t) (i) of the statutes is created to read:

AB455-AA2,6,18 938.32 (1t) (i) 1. If a victim of the delinquent act is paid an award under ch. 949 for any loss arising out of the delinquent 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 delinquent activity.

AB455-AA2,7,2 2. When restitution is ordered, the court shall inquire to determine if an award has been made under 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 ch. 949, the restitution shall be paid only to the general fund. If the restitution ordered is greater than the award under ch. 949, the general fund shall receive an amount equal to the award under ch. 949 and the balance shall be paid to the victim.".

AB455-AA2,7,5 22. Page 13, line 17: after "ordered." insert "Any recovery under this paragraph shall be reduced by the amount recovered as restitution for the same act under s. 938.45 (1r) (a)".

AB455-AA2,7,6 23. Page 15, line 21: after that line insert:

AB455-AA2,7,7 " Section 32g. 938.34 (5) (i) of the statutes is created to read:

AB455-AA2,7,13 938.34 (5) (i) 1. If a victim of the delinquent act is paid an award under ch. 949 for any loss arising out of the delinquent 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 delinquent activity.

AB455-AA2,7,20 2. When restitution is ordered, the court shall inquire to determine if an award has been made under 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 ch. 949, the restitution shall be paid only to the general fund. If the restitution ordered is greater than the award under ch. 949, the general fund shall receive an amount equal to the award under ch. 949 and the balance shall be paid to the victim.".

AB455-AA2,7,23 24. Page 16, line 12: after "ordered." insert "Any recovery under this paragraph shall be reduced by the amount recovered as restitution for the same act under s. 938.45 (1r) (a)".

AB455-AA2,7,24 25. Page 18, line 18: after that line insert:

AB455-AA2,8,1 " Section 39m. 938.45 (1r) of the statutes is created to read:

AB455-AA2,8,17 938.45 (1r) (a) In a proceeding in which a juvenile has been found to have committed a delinquent act or a civil law or ordinance violation that has resulted in damage to or loss or destruction of the property of another, in bodily injury to another excluding pain and suffering, the court may order a parent who has custody, as defined in s. 895.035 (1), of the juvenile to make reasonable restitution for the damage or injury as provided in pars. (b) to (g) if the court, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Except for recovery for retail theft under s. 943.51, the maximum amount of any restitution ordered under this paragraph for damage, injury or death resulting from any one act of a juvenile or from the same act committed by 2 or more juveniles in the custody of the same parent may not exceed the amount specified in s. 799.01 (1) (d). Any order under this paragraph shall include a finding that the parent who has custody of the juvenile is financially able to pay the amount ordered and may allow up to the date of expiration of the order for the payment. Any recovery under this paragraph shall be reduced by the amount recovered as restitution for the same act under s. 938.34 (5) or 938.343 (4).

AB455-AA2,8,23 (b) If the delinquent act or civil law or ordinance violation resulted in damage to or loss or destruction of property, the restitution order may require the parent who has custody, as defined in s. 895.035 (1), of the juvenile to return the property to the owner or the owner's designee or, if return of the property is impossible, impractical or inadequate, pay the owner or the owner's designee the reasonable repair or replacement cost of the property or the greater of the following:

AB455-AA2,8,24 1. The value of the property on the date of its damage, loss or destruction.

AB455-AA2,9,3 2. The value of the property on the date of disposition, less the value of any part of the property returned as of the date of its return. The value of any retail merchandise shall be its retail value.

AB455-AA2,9,6 (c) If the delinquent act or civil law or ordinance violation resulted in bodily injury, the restitution order may require that the parent who has custody, as defined in s. 895.035 (1), of the juvenile do any one or more of the following:

AB455-AA2,9,9 1. Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric and psychological care and treatment.

AB455-AA2,9,11 2. Pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation.

AB455-AA2,9,13 3. Reimburse the injured person for income lost as a result of a delinquent act considered at disposition.

AB455-AA2,9,16 4. If the injured person's sole employment at the time of the injury was performing the duties of a homemaker, pay an amount sufficient to ensure that the duties are continued until the person is able to resume performance of the duties.

AB455-AA2,9,20 (d) If the delinquent act or civil law or ordinance violation resulted in death, the restitution order may require that the parent who has custody, as defined in s. 895.035 (1), of the juvenile pay an amount equal to the cost of necessary funeral and related services under s. 895.04 (5).

AB455-AA2,9,25 (e) If the juvenile violated s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.07 or 948.08 and par. (c) 1. does not apply, the restitution order may require that the parent who has custody, as defined in s. 895.035 (1), of the juvenile pay an amount, not to exceed $10,000, equal to the cost of necessary professional services relating to psychiatric and psychological care and treatment. The $10,000 limit under this paragraph does not apply to the amount of any restitution ordered under par. (c) or (f) for the cost of necessary professional services relating to psychiatric and psychological care and treatment.

AB455-AA2,10,6 (f) In any case, the restitution order may require that the parent who has custody, as defined in s. 895.035 (1), of the juvenile do any one or more of the following:

AB455-AA2,10,9 1. Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the juvenile for his or her conduct in the commission of a delinquent act considered at disposition.

AB455-AA2,10,13 2. Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom a delinquent act considered at disposition was committed resulting from the filing of charges or cooperating in the investigation and prosecution of the delinquent act.

AB455-AA2,10,18 3. Reimburse any person or agency for amounts paid as rewards for information leading to the apprehension or successful prosecution of the juvenile for a delinquent act for which the juvenile was adjudicated delinquent or to the apprehension or prosecution of the juvenile for a delinquent act that was read into the record and dismissed at the time of adjudication.

AB455-AA2,10,20 4. If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this subsection.

AB455-AA2,10,25 (g) 1. If a victim of a delinquent act is paid an award under ch. 949 for any loss arising out of the delinquent 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 delinquent activity.

AB455-AA2,11,7 2. When restitution is ordered, the court shall inquire to determine if an award has been made under 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 ch. 949, the restitution shall be paid only to the general fund. If the restitution ordered is greater than the award under ch. 949, the general fund shall receive an amount equal to the award under ch. 949 and the balance shall be paid to the victim.

AB455-AA2, s. 39p Section 39p. 938.45 (2) of the statutes is amended to read:

AB455-AA2,11,18 938.45 (2) No order under sub. (1) (a) or , (1m) (a) or (1r) (a) may be entered until the person who is the subject of the contemplated order is given an opportunity to be heard on the contemplated order. The court shall cause notice of the time, place and purpose of the hearing to be served on the person personally at least 10 days before the date of hearing. The procedure in these cases shall, as far as practicable, be the same as in other cases in the court. At the hearing the person may be represented by counsel and may produce and cross-examine witnesses. Any person who fails to comply with any order issued by a court under sub. (1) (a) or, (1m) (a) or (1r) (a) may be proceeded against for contempt of court. If the person's conduct involves a crime, the person may be proceeded against under the criminal law.".

AB455-AA2,11,19 26. Page 19, line 2: after that line insert:

AB455-AA2,11,20 " Section 40m. 949.15 (1) of the statutes is amended to read:

AB455-AA2,12,8 949.15 (1) Whenever the department orders the payment of an award under this chapter as a result of the occurrence of an event that creates a cause of action on the part of a claimant against any person, the department is subrogated to the rights of the claimant and may bring an action against the person for the amount of the damages sustained by the claimant. If an amount greater than that paid under the award order is recovered and collected in any such action, the department shall pay the balance to the claimant. If the person responsible for the injury or death has previously made restitution payments to the general fund under s. 938.245, 938.32, 938.34 or 973.20 or if his or her parent has previously made restitution payments to the general fund under s. 938.45, any judgment obtained by the department under this section shall be reduced by the amount of the restitution payments to the general fund.

AB455-AA2, s. 40p Section 40p. 949.165 (7) of the statutes is amended to read:

AB455-AA2,12,15 949.165 (7) Third priority payments; legal fees and restitution. The department shall make payments from an escrow account for any governmental entity for the reimbursement for or recoupment of the costs of legal representation of the person charged with the serious crime or for any unpaid restitution under s. 938.245, 938.32, 938.34, 938.45 or 973.20. The governmental entity shall file a claim for the applicable amount with the department.".

AB455-AA2,12,16 (End)