Chapter 973

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, 293 Wis. 2d 169, 716 N.W.2d 807, 04-0036.

973.20 Annotation This section does not limit the consideration of a defendant’s ability to pay out of funds derived from only earnings or wages. “Financial resources” refers to all financial resources available to the defendant at the time of the restitution order, including gifted funds, except where otherwise provided by law. State v. Greene, 2008 WI App 100, 313 Wis. 2d 211, 756 N.W.2d 411, 07-0269.

973.20 Annotation When the amount of restitution was set at judgment and the initial order in this case was timely, the defendant was not prejudiced by an amended order that only clarified when the defendant would be required to start paying the restitution established in the original order. The amended order did not violate double jeopardy principles. State v. Greene, 2008 WI App 100, 313 Wis. 2d 211, 756 N.W.2d 411, 07-0269.

973.20 Annotation The circuit court had the authority to order the defendant to reimburse the defendant’s mother for forfeited bail the defendant’s mother paid, either as restitution or as a condition of extended supervision. State v. Agosto, 2008 WI App 149, 314 Wis. 2d 385, 760 N.W.2d 415, 06-2646.

973.20 Annotation This section authorizes a trial court to order restitution to victims of a crime considered at sentencing, which includes any crime for which the defendant was convicted and any read-in crime. Here, an officer was injured while pursuing a person charged with armed robbery and not with fleeing an officer, assaulting an officer, or any crime related to the person’s flight from the officer. Accordingly, the officer was not a victim of a crime considered at sentencing, and neither the officer nor the insurance company that paid expenses related to the officer’s injuries can receive restitution. State v. Lee, 2008 WI App 185, 314 Wis. 2d 764, 762 N.W.2d 431, 08-0390.

973.20 Annotation The school district was the direct victim of a bomb threat directed against a school. During the time that the students and staff were evacuated from school district property as a result of a bomb scare, the school district paid its employees, but received no services from them. Under Rouse, 2002 WI App 107, and sub. (5) (a), the district was entitled to restitution for that loss of employee productivity. State v. Vanbeek, 2009 WI App 37, 316 Wis. 2d 527, 765 N.W.2d 834, 08-1275.

973.20 Annotation When a court has considered a defendant’s ability to pay in setting restitution, the length of the term of probation or of the sentence does not have any limiting effect on the total amount of restitution that may be ordered. In providing for converting unpaid restitution to civil judgments, it seems clear that the legislature recognized that there would be circumstances when all the necessary restitution amounts often would not and could not be paid before the completion of the sentence or probationary period. State v. Fernandez, 2009 WI 29, 316 Wis. 2d 598, 764 N.W.2d 509, 07-1403.

973.20 Annotation There are two components to the question of whether restitution can be ordered. The claimant must be a “direct victim” of the crime, and there must be a causal connection between the defendant’s conduct and harm suffered by the claimant. When the defendant damaged a residence rented from the claimant by making unauthorized alternations constructing and operating a marijuana growing operation, the claimant was a direct victim of the crime and the growing operation was the substantial factor in causing the damages incurred. State v. Hoseman, 2011 WI App 88, 334 Wis. 2d 415, 799 N.W.2d 479, 10-1362.

973.20 Annotation The eventual recovery of stolen property does not satisfy the defendant’s restitution obligation. Here, at the time a stolen vehicle was recovered, the victim had been compensated by its insurer, and the circumstances made return of the vehicle impractical. The circuit court’s determination that the insurer was entitled to compensation for the losses it incurred in fulfilling its obligation to its insureds in a manner consistent with its business practice was reasonable. State v. Gibson, 2012 WI App 103, 344 Wis. 2d 220, 822 N.W.2d 500, 11-1760.

973.20 Annotation The defendant in this possession of child pornography case was not liable for restitution to the child victim. Before restitution can be ordered, there must be a causal nexus between the crime considered at sentencing and the damage. The child victim’s mother testified only as to the loss of income resulting from her husband’s initial abuse of her children in creating the pornography. No evidence was presented from which the court could reasonably infer that the viewing and possession of the daughter’s image by the defendant or others caused any of the income loss for which the mother sought restitution. State v. Tarlo, 2016 WI App 81, 372 Wis. 2d 333, 887 N.W.2d 898, 15-1502.

973.20 Annotation The statutory term “crime considered at sentencing” is defined in broad terms. It encompasses all facts and reasonable inferences concerning a defendant’s activity related to the crime for which the defendant is convicted, not just those facts necessary to support the elements of the specific charge of which the defendant is convicted. When determining whether there is a causal nexus between the victim’s claimed damage and the crime considered at sentencing, a court should take a defendant’s entire course of conduct into consideration. In this case, the “crime considered at sentencing” included burglaries of the victim’s home that the court found the defendant had committed prior to the date of the underlying crime even though proof of those burglaries was not necessary to sustain the defendant’s conviction. State v. Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, 15-2320.

973.20 Annotation Sub. (11) (c) and s. 301.32 (1) codify common law by specifically authorizing the Department of Corrections to take restitution from an inmate’s account at an amount or a percentage the department determines is reasonable for payment to victims. State v. Williams, 2018 WI App 20, 380 Wis. 2d 440, 909 N.W.2d 177, 17-0320.

973.20 Annotation A circuit court, acting as a sentencing court, lacks the competency to address an allegedly improper disbursement of funds by the Department of Corrections under sub. (11) (c) or s. 301.32 (1). Once an inmate is sentenced to prison, the inmate is under the control of the executive branch and must address any objections to the internal operating procedures of the department and then, if necessary, by writ of certiorari to the circuit court. State v. Williams, 2018 WI App 20, 380 Wis. 2d 440, 909 N.W.2d 177, 17-0320.

973.20 Annotation The circuit court’s finding that the victim met the victim’s burden under sub. (14) (a) in proving the amount of loss resulting from a crime considered at sentencing was not clearly erroneous. First, the victim met the burden to prove “the amount of loss sustained.” Second, the defendant pled guilty to burglarizing the victim’s home on a particular date. Third, there was no evidence presented at the restitution hearing that either the defendant or anyone else had stolen any of the listed items from the victim’s home on days other than that date. State v. Wiskerchen, 2019 WI 1, 385 Wis. 2d 120, 921 N.W.2d 730, 16-1541.

973.20 Annotation Discussing applicability of accord and satisfaction to restitution orders. State v. Muth, 2020 WI 65, 392 Wis. 2d 578, 945 N.W.2d 645, 18-0875.

973.20 Annotation A tenant’s ability to collect double damages in a civil lawsuit under s. 100.20 (5) does not mean that a circuit court can order a landlord to pay a tenant double the tenant’s pecuniary loss as restitution in a criminal case under this section. A primary purpose of restitution is not to punish the defendant, but to compensate the victim for actual loss. In compensating the victim, the goal is to make the victim whole again. In this case, the effect of the court’s decision to award as restitution the double damages permitted by s. 100.20 (5) was either to punish the landlord or to compensate the tenants for a nonpecuniary injury in violation of this section. State v. Lasecki, 2020 WI App 36, 392 Wis. 2d 807, 946 N.W.2d 137, 18-2340.

973.20 Annotation The plain statutory language under sub. (2) (b) [now sub. (2) (am) 2.] identifies three options the circuit court may choose in determining a proper restitution amount: 1) the reasonable repair cost; 2) the reasonable replacement cost; or 3) the value of the property on the date of the damage, loss, or destruction or the value of the property as of sentencing—whichever of those two amounts is greater. When a circuit court selects option 1, the statute’s plain language does not restrict the award to the actual value of the property even when the actual value may be less than the reasonable repair cost. Rather, the statute allows a circuit court to choose the “reasonable repair” option in determining the restitution amount even if the repair cost exceeds the property’s value. The value of the property—and the requirement that the circuit court choose the “greater” of two described amounts—comes into play only when the circuit court selects the third choice out of the three options in setting the restitution amount. State v. Stone, 2021 WI App 84, 400 Wis. 2d 197, 968 N.W.2d 761, 20-1661.

973.20 Annotation The sentencing court’s order that restitution be paid from 25 percent of the defendant’s prison wages was an order to pay restitution in “specified installments” under sub. (10) (a). State ex rel. Ortiz v. Carr, 2022 WI App 16, 401 Wis. 2d 450, 973 N.W.2d 786, 20-1394.

973.20 Annotation The Department of Corrections does not have exclusive authority to select a restitution deduction percentage and does not have the authority to set percentages that conflict with an order from a sentencing court. State ex rel. Ortiz v. Carr, 2022 WI App 16, 401 Wis. 2d 450, 973 N.W.2d 786, 20-1394.

973.20 Annotation A minor passenger of a driver convicted of operating while under the influence of an intoxicant with a minor passenger under ss. 346.63 (1) and 346.65 (2) (f) is a person against whom a crime has been committed and thus a “victim” under s. 950.02 (4) (a) 1. and has the right to seek restitution under this section. State v. Gahart, 2022 WI App 61, 405 Wis. 2d 375, 983 N.W.2d 729, 21-1841.

973.20 Annotation Article I, section 9m, of the Wisconsin Constitution provides for restitution only insofar as the legislature confers that right through statute. The legislature makes restitution available to crime victims under this section and other statutes, but crime victims are not guaranteed restitution in every instance. Sub. (12) (b) makes clear that restitution payments take priority over specific statutory fees, surcharges, fines, and costs, but the priority scheme does not include supervision fees under s. 304.074. OAG 2-15.

973.20 Annotation Sentencing courts may enter a civil judgment for unpaid restitution when an offender dies while incarcerated or under Department of Corrections supervision. OAG 2-20.

973.25 973.25 Certificates of qualification for employment.

973.25(1) (1) Definitions. In this section:

973.25(1)(a) (a) “Certificate of qualification for employment” means a certificate issued by the council on offender employment that provides an offender with relief from a collateral sanction, except that it does not provide relief from s. 48.685 (5m), 50.065 (4m), or 111.335 (3) (a), (b), (c), or (e) or (4) (h) or (i).

973.25(1)(b) (b) “Collateral sanction” means a penalty, ineligibility, disability, or disadvantage that is related to employment or to occupational licensing or certification and that is a result of the offender’s criminal record. “Collateral sanction” does not include confinement in a jail or prison; probation, parole, or extended supervision; suspension or revocation of motor vehicle operating privileges; imposition of a forfeiture, fine, or assessment; costs of prosecution; or an order to pay restitution.

973.25(1)(c) (c) “Offender” means a person who has been convicted of a crime other than a violent crime, as defined in s. 165.84 (7) (ab).

973.25(2) (2) Council on offender employment. The director of state courts shall provide forms for use in filing an application for a certificate of qualification for employment and shall convene a council on offender employment that shall review applications for certificates of qualification for employment. The council shall consist of the following 3 members: the attorney general, or his or her designee; the state public defender, or his or her designee; and the chairperson of the parole commission, or his or her designee. The council shall have the powers, duties, and responsibilities set forth in this section.

973.25(3) (3) Eligibility. An offender who has been released from confinement may apply for a certificate of qualification for employment under this section if any of the following applies:

973.25(3)(a) (a) He or she has served at least 24 consecutive months of a term of confinement in prison in the Wisconsin state prisons.

973.25(3)(b) (b) He or she has served at least 12 consecutive months of a term of confinement in prison in the Wisconsin state prisons and at least 12 consecutive months of a term of extended supervision under s. 302.113.

973.25(4) (4) Procedure.

973.25(4)(a) (a) An offender may file an application for a certificate of qualification for employment with the council on offender employment on a form to be provided by the director of state courts along with an application fee of $20 that shall be deposited in the appropriation under s. 20.625 (1) (h). The council may waive the fee if the offender submits an affidavit along with the application in which he or she swears or affirms that he or she is unable to pay the application fee.

973.25(4)(b) (b) After receiving an application under par. (a), the council on offender employment shall request from the department of corrections and the department shall provide to the council all of the following information about the offender:

973.25(4)(b)1. 1. His or her highest level of education.

973.25(4)(b)2. 2. Any treatment he or she has completed.

973.25(4)(b)3. 3. Any performance evaluations for his or her work.

973.25(4)(b)4. 4. Any risk and needs assessment reports.

973.25(4)(b)5. 5. Any other reports of information gathered during the normal course of business, as requested by the council.

973.25(4)(c) (c) Within 60 days after receiving the information requested under par. (b), the council on offender employment shall issue an order granting or denying the offender’s request for a certificate of qualification for employment.

973.25(5) (5) Granting of certificate; exceptions. The council on offender employment shall grant an offender’s application for a certificate of qualification for employment if the council finds that the offender is not likely to pose a risk to public safety, that the certificate will substantially assist the offender in obtaining employment or occupational licensing or certification, and that the offender is less likely to commit an additional criminal offense if he or she obtains a certificate of qualification for employment.

973.25(6) (6) Revocation of certificate of qualification for employment.

973.25(6)(a) (a) If an offender is convicted of a felony or of a Class A or Class B misdemeanor after he or she is issued a certificate of qualification for employment, or if his or her probation, parole, or extended supervision is revoked for the commission of a crime, the court shall permanently revoke a certificate of qualification for employment issued under sub. (5).

973.25(6)(b) (b) The court may not revoke an offender’s certificate of qualification for employment as a sanction for the offender’s commission of an act or offense that is a violation of a condition of the offender’s probation, parole, or extended supervision that is not a crime, or if the offender’s probation, parole, or extended supervision is revoked as a result of the offender’s commission of a noncriminal act.

973.25(7) (7) Admissibility of a certificate of qualification for employment in a fair employment proceeding. A certificate of qualification for employment issued under sub. (5) is not admissible as evidence in a proceeding alleging an act of discrimination on the basis of conviction record under subch. II of ch. 111.

973.25(8) (8) Data collection; report to legislature. The department of corrections shall prepare an annual report that includes, for each year, the number of applications that are received under this section, the number of certificates of qualification for employment that are issued, and the number of certificates of qualification for employment that are revoked and the reasons for revocation. The department shall submit the report to the chief clerk of each house of the legislature for distribution to the legislature under s. 13.172 (2).

973.25 History History: 2019 a. 123; 2021 a. 240 s. 30.