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),
95-1975.
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 673,
573 N.W.2d 872 (Ct. App. 1997),
97-1600.
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 696,
573 N.W.2d 876 (Ct. App. 1997),
97-0847.
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),
98-1421.
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),
98-3405.
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),
98-2718.
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,
99-1457.
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,
99-2315.
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,
99-3347.
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,
00-1821.
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,
01-0182.
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,
01-1832.
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, ___ Wis. 2d ___,
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. 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 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, ___ Wis. 2d ___,
715 N.W.2d 639,
04-0036.
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.
