973.195 Annotation
This section is a remedy that provides the procedure for judicial review of a sentence when the law relating to sentencing changes and is an adequate remedy to address the circumstances resulting from the reduction in penalties under the
2001 Act 109 revisions to the sentencing laws. State v. Trujillo, 2005 WI 45,
279 Wis. 2d 712,
694 N.W.2d 933,
03-1463.
973.195 Annotation
Sub. (1g)sets forth the "applicable percentage" of the term of initial confinement a person must serve before being eligible for sentence adjustment utilizing the felony classification scheme adopted in
2001 Act 109 and does not indicate how to calculate the "applicable percentage" for a sentence under the scheme adopted in
1997 Act 283. This problem is remedied by applying the Act 109 felony classification under s. 939.50 to persons sentenced under Act 283 for the limited purpose of determining the applicable percentage of a term of initial confinement in a petition for sentence adjustment. State v. Tucker, 2005 WI 46,
279 Wis. 2d 697,
694 N.W.2d 926,
03-1276.
973.195 Annotation
Two concurring/dissenting opinions joined in by the same 4 justices, read together, hold that, "shall" in the last sentence of sub. (1r) (c) is directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under s. 973.195. The circuit court must exercise its discretion by weighing the appropriate factors under sub. (1r) (b) 1. when the court reaches its decision on sentence adjustment. State v. Stenklyft, 2005 WI 71,
281 Wis. 2d 484,
697 N.W.2d 452,
03-1959.
973.20(1g)(a)
(a) "Crime considered at sentencing" means any crime for which the defendant was convicted and any read-in crime.
973.20(1g)(b)
(b) "Read-in crime" means any crime that is uncharged or that is dismissed as part of a plea agreement, that the defendant agrees to be considered by the court at the time of sentencing and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.
973.20(1r)
(1r) When imposing sentence or ordering probation for any crime, other than a crime involving conduct that constitutes domestic abuse under
s. 813.12 (1) (am) or
968.075 (1) (a), for which the defendant was convicted, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record. When imposing sentence or ordering probation for a crime involving conduct that constitutes domestic abuse under
s. 813.12 (1) (am) or
968.075 (1) (a) for which the defendant was convicted or that was considered at sentencing, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime or, if the victim is deceased, to his or her estate, unless the court finds that imposing full or partial restitution will create an undue hardship on the defendant or victim and describes the undue hardship on the record. Restitution ordered under this section is a condition of probation, extended supervision, or parole served by the defendant for a crime for which the defendant was convicted. After the termination of probation, extended supervision, or parole, or if the defendant is not placed on probation, extended supervision, or parole, restitution ordered under this section is enforceable in the same manner as a judgment in a civil action by the victim named in the order to receive restitution or enforced under
ch. 785.
973.20(2)
(2) If a crime considered at sentencing resulted in damage to or loss or destruction of property, the restitution order may require that the defendant:
973.20(2)(a)
(a) Return the property to the owner or owner's designee; or
973.20(2)(b)
(b) If return of the property under
par. (a) is impossible, impractical or inadequate, pay the owner or owner's designee the reasonable repair or replacement cost or the greater of:
973.20(2)(b)1.
1. The value of the property on the date of its damage, loss or destruction; or
973.20(2)(b)2.
2. The value of the property on the date of sentencing, less the value of any part of the property returned, as of the date of its return. The value of retail merchandise shall be its retail value.
973.20(3)
(3) If a crime considered at sentencing resulted in bodily injury, the restitution order may require that the defendant do one or more of the following:
973.20(3)(a)
(a) 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.
973.20(3)(b)
(b) Pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation.
973.20(3)(c)
(c) Reimburse the injured person for income lost as a result of a crime considered at sentencing.
973.20(3)(d)
(d) 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.
973.20(4)
(4) If a crime considered at sentencing resulted in death, the restitution order may also require that the defendant pay an amount equal to the cost of necessary funeral and related services under
s. 895.04 (5).
973.20(4m)
(4m) If the defendant violated
s. 940.225,
948.02,
948.025,
948.05,
948.051,
948.06,
948.07,
948.08, or
948.085, or
s. 940.302 (2), if the court finds that the crime was sexually motivated, as defined in
s. 980.01 (5), and
sub. (3) (a) does not apply, the restitution order may require that the defendant 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 subsection does not apply to the amount of any restitution ordered under
sub. (3) or
(5) for the cost of necessary professional services relating to psychiatric and psychological care and treatment.
973.20(4o)
(4o) If the defendant violated
s. 940.302 (2) or
948.051, and
sub. (2) or
(3) does not apply, the restitution order may require that the defendant pay an amount equal to any of the following:
973.20(4o)(a)
(a) The costs of necessary transportation, housing, and child care for the victim.
973.20(4o)(b)1.
1. The gross income gained by the defendant due to the services of the victim.
973.20(4o)(b)2.
2. The value of the victim's services as provided under the state minimum wage.
973.20(4o)(c)
(c) Any expenses incurred by the victim if relocation for personal safety is determined to be necessary by the district attorney.
973.20(4o)(d)
(d) The costs of relocating the victim to his or her city, state, or country of origin.
973.20(5)
(5) In any case, the restitution order may require that the defendant do one or more of the following:
973.20(5)(a)
(a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.
973.20(5)(b)
(b) Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom a crime considered at sentencing was committed resulting from the filing of charges or cooperating in the investigation and prosecution of the crime.
973.20(5)(c)
(c) Reimburse any person or agency for amounts paid as rewards for information leading to the apprehension or successful prosecution of the defendant for a crime for which the defendant was convicted or to the apprehension or prosecution of the defendant for a read-in crime.
973.20(5)(d)
(d) If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section.
973.20(6)
(6) Any order under
sub. (5) (c) or
(d) shall require that all restitution to victims under the order be paid before restitution to other persons.
973.20(7)
(7) If the court orders that restitution be paid to more than one person, the court may direct the sequence in which payments are to be transferred under
sub. (11) (a). If more than one defendant is ordered to make payments to the same person, the court may apportion liability between the defendants or specify joint and several liability. If the court specifies that 2 or more defendants are jointly and severally liable, the department or the clerk to whom payments are made under
sub. (11) (a) shall distribute any overpayments so that each defendant, as closely as possible, pays the same proportion of the ordered restitution.
973.20(8)
(8) Restitution ordered under this section does not limit or impair the right of a victim to sue and recover damages from the defendant in a civil action. The facts that restitution was required or paid are not admissible as evidence in a civil action and have no legal effect on the merits of a civil action. Any restitution made by payment or community service shall be set off against any judgment in favor of the victim in a civil action arising out of the facts or events which were the basis for the restitution. The court trying the civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant.
973.20(9)(a)(a) If a crime victim is paid an award under
subch. I of ch. 949 for any loss arising out of a criminal 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 criminal activity.
973.20(9)(b)
(b) When restitution is ordered, the court shall inquire to see if an award has been made under
subch. I of 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
subch. I of ch. 949, the restitution shall be credited to the appropriation account under
s. 20.455 (5) (hh). If the restitution ordered is greater than the award under
subch. I of ch. 949, an amount equal to the award under
subch. I of ch. 949 shall be credited to the appropriation account under
s. 20.455 (5) (hh) and the balance shall be paid to the victim.
973.20(9m)
(9m) When restitution is ordered, the court shall inquire to see if recompense has been made under
s. 969.13 (5) (a). If recompense has been made and the restitution ordered is less than or equal to the recompense, the restitution shall be applied to the payment of costs and, if any restitution remains after the payment of costs, to the payment of the judgment. If recompense has been made and the restitution ordered is greater than the recompense, the victim shall receive an amount equal to the amount of restitution less the amount of recompense and the balance shall be applied to the payment of costs and, if any restitution remains after the payment of costs, to the payment of the judgment. This subsection applies without regard to whether the person who paid the recompense is the person who is convicted of the crime.
973.20(10)
(10) The court may require that restitution be paid immediately, within a specified period or in specified installments. If the defendant is placed on probation or sentenced to imprisonment, the end of a specified period shall not be later than the end of any period of probation, extended supervision or parole. If the defendant is sentenced to the intensive sanctions program, the end of a specified period shall not be later than the end of the sentence under
s. 973.032 (3) (a).
973.20(11)(a)(a) Except as otherwise provided in this paragraph, the restitution order shall require the defendant to deliver the amount of money or property due as restitution to the department for transfer to the victim or other person to be compensated by a restitution order under this section. If the defendant is not placed on probation or sentenced to prison, the court may order that restitution be paid to the clerk of court for transfer to the appropriate person. The court shall impose on the defendant a restitution surcharge under
ch. 814 equal to 5% of the total amount of any restitution, costs, attorney fees, court fees, fines, and surcharges ordered under
s. 973.05 (1) and imposed under
ch. 814, which shall be paid to the department or the clerk of court for administrative expenses under this section.
973.20(11)(b)
(b) The department shall establish a separate account for each person in its custody or under its supervision ordered to make restitution for the collection and disbursement of funds. A portion of each payment constitutes the surcharge for administrative expenses under
par. (a).
973.20(12)(a)(a) If the court orders restitution in addition to the payment of fines, costs, fees, and surcharges under
ss. 973.05 and
973.06 and
ch. 814, it shall set the amount of fines, costs, fees, and surcharges in conjunction with the amount of restitution and issue a single order, signed by the judge, covering all of the payments. If the costs for legal representation by a private attorney appointed under
s. 977.08 are not established at the time of issuance of the order, the court may revise the order to include those costs at a later time.
973.20(12)(b)
(b) Except as provided in
par. (c), payments shall be applied first to satisfy the ordered restitution in full, then to pay any fines or surcharges under
s. 973.05, then to pay costs, fees, and surcharges under
ch. 814 other than attorney fees and finally to reimburse county or state costs of legal representation.
973.20(12)(c)
(c) If a defendant is subject to more than one order under this section and the financial obligations under any order total $50 or less, the department or the clerk of court, whichever is applicable under
sub. (11) (a), may pay these obligations first.
973.20(13)(a)(a) The court, in determining whether to order restitution and the amount thereof, shall consider all of the following:
973.20(13)(a)1.
1. The amount of loss suffered by any victim as a result of a crime considered at sentencing.
973.20(13)(a)3.
3. The present and future earning ability of the defendant.
973.20(13)(a)4.
4. The needs and earning ability of the defendant's dependents.
973.20(13)(b)
(b) The district attorney shall attempt to obtain from the victim prior to sentencing information pertaining to the factor specified in
par. (a) 1. Law enforcement agencies, the department of corrections and any agency providing services under
ch. 950 shall extend full cooperation and assistance to the district attorney in discharging this responsibility. The department of justice shall provide technical assistance to district attorneys in this regard and develop model forms and procedures for collecting and documenting this information.
973.20(13)(c)
(c) The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. The court shall give the defendant the opportunity to stipulate to the restitution claimed by the victim and to present evidence and arguments on the factors specified in
par. (a). If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation. In other cases, the court may do any of the following:
973.20(13)(c)1.
1. Order restitution of amounts not in dispute as part of the sentence or probation order imposed and direct the appropriate agency to file a proposed restitution order with the court within 90 days thereafter, and mail or deliver copies of the proposed order to the victim, district attorney, defendant and defense counsel.
973.20(13)(c)2.
2. Adjourn the sentencing proceeding for up to 60 days pending resolution of the amount of restitution by the court, referee or arbitrator.
973.20(13)(c)3.
3. With the consent of the defendant, refer the disputed restitution issues to an arbitrator acceptable to all parties, whose determination of the amount of restitution shall be filed with the court within 60 days after the date of referral and incorporated into the court's sentence or probation order.
973.20(13)(c)4.
4. Refer the disputed restitution issues to a circuit court commissioner or other appropriate referee, who shall conduct a hearing on the matter and submit the record thereof, together with proposed findings of fact and conclusions of law, to the court within 60 days of the date of referral. Within 30 days after the referee's report is filed, the court shall determine the amount of restitution on the basis of the record submitted by the referee and incorporate it into the sentence or probation order imposed. The judge may direct that hearings under this subdivision be recorded either by audio recorder or by a court reporter. A transcript is not required unless ordered by the judge.
973.20(14)
(14) At any hearing under
sub. (13), all of the following apply:
973.20(14)(a)
(a) The burden of demonstrating by the preponderance of the evidence the amount of loss sustained by a victim as a result of a crime considered at sentencing is on the victim. The district attorney is not required to represent any victim unless the hearing is held at or prior to the sentencing proceeding or the court so orders.
973.20(14)(b)
(b) The burden of demonstrating, by the preponderance of the evidence, the financial resources of the defendant, the present and future earning ability of the defendant and the needs and earning ability of the defendant's dependents is on the defendant. The defendant may assert any defense that he or she could raise in a civil action for the loss sought to be compensated. The office of the state public defender is not required to represent any indigent defendant unless the hearing is held at or prior to the sentencing proceeding, the defendant is incarcerated when the hearing is held or the court so orders.
973.20(14)(c)
(c) The burden of demonstrating, by the preponderance of the evidence, such other matters as the court deems appropriate is on the party designated by the court, as justice requires.
973.20(14)(d)
(d) All parties interested in the matter shall have an opportunity to be heard, personally or through counsel, to present evidence and to cross-examine witnesses called by other parties. The court, arbitrator or referee shall conduct the proceeding so as to do substantial justice between the parties according to the rules of substantive law and may waive the rules of practice, procedure, pleading or evidence, except provisions relating to privileged communications and personal transactions or communication with a decedent or mentally ill person or to admissibility under
s. 901.05. Discovery is not available except for good cause shown. If the defendant is incarcerated, he or she may participate by telephone under
s. 807.13 unless the court issues a writ or subpoena compelling the defendant to appear in person.
973.20 Note
Judicial Council Note, 1987: Sub. (1) allows restitution to be ordered although the defendant is not placed on probation. It allows restitution to be made payable to the estate of a deceased victim. It requires restitution ordered to be a condition of probation or parole served by the defendant for the offense. Finally, it allows restitution unpaid at the time probation or parole supervision terminates to be enforced by the victim as a judgment creditor. See 18 USC 3662 (a), (c) and (h).
973.20 Annotation
Sub. (2) is patterned on 18 USC 3663 (b) (1) and prior s. 973.09 (1r), stats.
973.20 Annotation
Sub. (3) is patterned on 18 USC 3663 (b) (2). Paragraph (d) is patterned on s. 949.06 (1) (b) 3., stats.
973.20 Annotation
Sub. (4) is patterned on 18 USC 3663 (b) (3).
973.20 Annotation
Sub. (5) (a) and (b) is based on prior s. 973.09 (8) (a) and (b), stats. A new provision allows the court to order restitution of income lost by the victim while participating in the investigation and prosecution of the offense.
973.20 Annotation
Sub. (5) (c) is new. It allows the court to order restitution of rewards paid for information which helps solve or prosecute the offense.
973.20 Annotation
Sub. (5) (d) carries forward the provision of prior s. 973.09 (1) (b), stats., allowing restitution to insurers, sureties, etc.
973.20 Annotation
Sub. (6) is based on 18 USC 3663 (e) (1).
973.20 Annotation
Sub. (7) is new. It allows the court to direct the order of payment when there is more than one victim, and to apportion liability when more than one defendant is ordered to make restitution to the same person, or to specify joint and several liability.
973.20 Annotation
Sub. (10) is based on 18 USC 3663 (f).
973.20 Annotation
Sub. (11) (a) is based on prior s. 973.09 (1) (b) and (1m) (c), stats.
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).
