If such an order was permissible, we review the terms of a restitution order to determine whether the circuit court erroneously exercised its discretion. However, when the record will permit only one conclusion in regard to how much restitution should be ordered, the decision becomes an issue of law, which we review de novo . The State contends that Olivas had no claim to restitution that he could have waived because restitution in a criminal proceeding serves penal objectives of the State. Therefore, the release did not affect the circuit court's ability to order restitution, and no setoff was warranted. Neither party disputes the findings of the circuit court in regard to the amount of Olivas's special damages, the level at which Walters is able to pay restitution and that Olivas suffered general damages of an indeterminate amount, as well as special damages.
Restitution is directed by statute.
The statutes also establish that at a hearing to determine the amount of restitution, the defendant has the burden of proving his or her ability to pay, while the victim has the burden of proving the amount of special damages sustained. However, other civil defenses available in a civil action, such as contributory negligence, lack of jurisdiction, or lack of capacity to sue or be sued simply do not make sense in a restitution hearing. Neither does the application of a civil statute of limitations in a restitution proceeding after a defendant has been convicted of a criminal offense. Both the legislative history and the goals of restitution support this result. Based on this language, Walters claims both accord and satisfaction and setoff as defenses.