2023 Wisconsin Statutes & Annotations › Chapter 973 - Sentencing. › 973.20 - Restitution.

973.20
Restitution.
(1g)
In this section:
(a)
“Crime considered at sentencing" means any crime for which the defendant was convicted and any read-in crime.
(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.
(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.
(2)
(am)
If a crime considered at sentencing resulted in damage to or loss or destruction of property, the restitution order may require that the defendant:
1.
Return the property to the owner or owner's designee; or
2.
If return of the property under subd. 1 is impossible, impractical or inadequate, pay the owner or owner's designee the reasonable repair or replacement cost or the greater of:
a.
The value of the property on the date of its damage, loss or destruction; or
b.
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.
(bm)
The restitution order may require the department of employee trust funds to withhold the amount determined under par. (am) from any payment of the defendant's annuity or lump sum under s. 40.08 (1t) and to deliver any amount withheld from the defendant's annuity or lump sum in accordance with sub. (11) if the crime considered at sentencing satisfies all of the following:
1.
The crime was a violation of ss. 943.20 and 946.12.
2.
The crime resulted in loss of property for the defendant's employer that participates in the Wisconsin Retirement System.
3.
The value of the property described in subd. 2. exceeds $2,500.
(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:
(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.
(b)
Pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation.
(c)
Reimburse the injured person for income lost as a result of a crime considered at sentencing.
(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.
(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).
(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.
(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:
(a)
The costs of necessary transportation, housing, and child care for the victim.
(b)
The greater of the following:
1.
The gross income gained by the defendant due to the services of the victim.
2.
The value of the victim's services as provided under the state minimum wage.
(c)
Any expenses incurred by the victim if relocation for personal safety is determined to be necessary by the district attorney.
(d)
The costs of relocating the victim to his or her city, state, or country of origin.
(5)
In any case, the restitution order may require that the defendant do one or more of the following:
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(9)
(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.
(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.
(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.
(10)
(a)
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).
(b)
The department or the clerk of court may certify an amount owed under par. (a) to the department of revenue if any of the following apply:
1.
The court required that restitution be paid immediately and more than 30 days have passed since the order was entered.
2.
The court required that restitution be paid within a specified period and more than 30 days have passed since the expiration of that period.
3.
The court required that restitution be paid in specified installments and the defendant is delinquent in making any of those payments.
(11)
(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 percent 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.
(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).
(c)
If a defendant who is in a state prison or who is sentenced to a state prison is ordered to pay restitution, the court order shall require the defendant to authorize the department to collect, from the defendant's wages and from other moneys held in the defendant's prisoner's account, an amount or a percentage the department determines is reasonable for payment to victims.
(d)
Each clerk of court who collects restitution under this section shall notify the department when a defendant has satisfied an order for restitution.
(e)
The department and each clerk of court that collects restitution under this section shall annually submit a report to the legislature under s. 13.172 (2) that specifies, for each fiscal year, the total amounts of restitution ordered for the department and each clerk of court to collect, the administrative fee the department and each clerk of court collects under par. (a), and the amounts of restitution collected by the department and by the clerk of court and dispersed to victims.
(f)
If an inmate in a state prison or a person sentenced to a state prison has not paid, at the time of his or her death, restitution ordered under this section, the department shall assess, collect, and disburse the amount owed from the inmate's wages or other moneys.
(12)
(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 and any amounts due under s. 304.074. If the costs for legal representation by a private attorney appointed under s. 977.08 or the fees due under s. 304.074 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.
(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.
(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.
(13)
(a)
The court, in determining whether to order restitution and the amount thereof, shall consider all of the following:
1.
The amount of loss suffered by any victim as a result of a crime considered at sentencing.
2.
The financial resources of the defendant.
3.
The present and future earning ability of the defendant.
4.
The needs and earning ability of the defendant's dependents.
5.
Any other factors which the court deems appropriate.
(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.
(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:
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.
2.
Adjourn the sentencing proceeding for up to 60 days pending resolution of the amount of restitution by the court, referee or arbitrator.
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.
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.
(14)
At any hearing under sub. (13), all of the following apply:
(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.
(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.
(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.
(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.
(15)
If misappropriation, from a cemetery, of an object that indicates that a deceased was a veteran, as described in s. 45.001, is a crime considered at sentencing, the restitution order shall require that the defendant reimburse an individual, organization, or governmental entity for the cost of replacing the object.
History:  1987 a. 398 ss. 39 to 41, 43; 1989 a. 31, 188; 1991 a. 39, 269; 1993 a. 213; 1995 a. 141, 161; 1997 a. 283; 2001 a. 16, 61; 2003 a. 139, 321; 2005 a. 277, 447; 2007 a. 20, 116; 2009 a. 105; 2015 a. 355; 2017 a. 246; 2019 a. 71.
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).
Sub. (2) is patterned on 18 USC 3663 (b) (1) and prior s. 973.09 (1r), stats.
Sub. (3) is patterned on 18 USC 3663 (b) (2). Paragraph (d) is patterned on s. 949.06 (1) (b) 3., stats.
Sub. (4) is patterned on 18 USC 3663 (b) (3).
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.
Sub. (5) (c) is new. It allows the court to order restitution of rewards paid for information which helps solve or prosecute the offense.
Sub. (5) (d) carries forward the provision of prior s. 973.09 (1) (b), stats., allowing restitution to insurers, sureties, etc.
Sub. (6) is based on 18 USC 3663 (e) (1).
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.
Sub. (10) is based on 18 USC 3663 (f).
Sub. (11) (a) is based on prior s. 973.09 (1) (b) and (1m) (c), stats.
Sub. (11) (b) is based on prior s. 973.09 (1m) (d), stats.
Sub. (12) (a) is based on prior s. 973.09 (1m) (a), stats.
Sub. (12) (b) is based on prior s. 973.09 (1m) (c), stats.
Sub. (12) (c) is based on prior s. 973.09 (1m) (cm), stats.
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.
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.
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.
Sub. (14) (a) to (c) is based on 18 USC 3664 (d) and prior s. 973.09 (1m) (a), stats.
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]
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).
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).
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).
Requiring a convicted defendant to deposit money for possible future counselling costs of victims was impermissible. State v. Handley, 173 Wis. 2d 838, 496 N.W.2d 725 (Ct. App. 1993).
Restitution to a party with no relation on the record to the crime of conviction or to read-in crimes is improper. State v. Mattes, 175 Wis. 2d 572, 499 N.W.2d 711 (Ct. App. 1993).
This section does not authorize restitution for non-pecuniary damages. State v. Stowers, 177 Wis. 2d 798, 503 N.W.2d 8 (Ct. App. 1993).
Imposition of a restitution order after commencement of the defendant's jail sentence did not constitute double jeopardy. State v. Perry, 181 Wis. 2d 43, 510 N.W.2d 722 (Ct. App. 1993).
The time period for determining restitution under sub. (13) (c) 2. is directory, not mandatory. State v. Perry, 181 Wis. 2d 43, 510 N.W.2d 722 (Ct. App. 1993).
Restitution for read-in charges may be ordered without the defendant's personal admission to the read-in charge. State v. Cleaves, 181 Wis. 2d 73, 510 N.W.2d 143 (Ct. App. 1993).
Sub. (1) [now sub. (1r)] imposes a mandatory duty on a court to provide for restitution; a sentence not providing restitution is illegal and subject to amendment to provide restitution. State v. Borst, 181 Wis. 2d 118, 510 N.W.2d 739 (Ct. App. 1993).
Repayment to a police department of money used by the police to buy drugs from a defendant is not authorized by this section. State v. Evans, 181 Wis. 2d 978, 512 N.W.2d 259 (Ct. App. 1994).
Interest on a restitution award is not allowed. State v. Hufford, 186 Wis. 2d 461, 522 N.W.2d 26 (Ct. App. 1994).
A restitution award for the repair or replacement cost of a stolen or damaged item is not limited to the fair market value of that item as determined by the jury. State v. Kennedy, 190 Wis. 2d 252, 528 N.W.2d 9 (Ct. App. 1994).
In the absence of a specific objection at the time restitution is ordered, the trial court may proceed with the understanding that the defendant's silence is a constructive stipulation to the restitution, including the amount. State v. Hopkins, 196 Wis. 2d 36, 538 N.W.2d 543 (Ct. App. 1995), 94-0537.
The expenses of fire-fighting and clean-up resulting from a crime could not be properly awarded to the county as restitution because the county did not have a direct relationship with the crime of record and was not a victim. State v. Schmaling, 198 Wis. 2d 757, 543 N.W.2d 555 (Ct. App. 1995).
A restitution order is unaffected by bankruptcy proceedings. State v. Sweat, 202 Wis. 2d 366, 550 N.W.2d 709 (Ct. App. 1996), 95-1975.
While a trial court may not, as part of a restitution order, assess general damages that compensate a victim for such things as pain and suffering, anguish, or humiliation, it may award as special damages any specific expenditure by the victim paid because of the crime. State v. Behnke, 203 Wis. 2d 43, 553 N.W.2d 265 (Ct. App. 1996), 95-1970.
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.
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.
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.
A governmental entity may be a “victim" under sub. (1r) entitled to collect restitution. State v. Howard-Hastings, 218 Wis. 2d 152, 579 N.W.2d 290 (Ct. App. 1998), 97-2986. See also State v. Ortiz, 2001 WI App 215, 247 Wis. 2d 836, 634 N.W.2d 860, 00-3390.
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.
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.
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.
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.
Contributory negligence may not be raised as a defense to restitution. State v. Knoll, 2000 WI App 135, 237 Wis. 2d 384, 614 N.W.2d 20, 99-1808.
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. But see State v. Williams, 2018 WI App 20, 380 Wis. 2d 440, 909 N.W.2d 177, 17-0320.
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.
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.
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.
There are four 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.
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.
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, 293 Wis. 2d 322, 716 N.W.2d 526, 05-0987.
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.
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.
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.
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. State v. Loutsch, 2003 WI App 16, 259 Wis. 2d 901, 656 N.W.2d 781, 02-1755.
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.
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.
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.
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.
“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.
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.
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.
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.
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.
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.
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 he 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.
The circuit court had the authority to order the defendant to reimburse his mother for forfeited bail his 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.
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 his flight from the officer. Accordingly, the officer was not a victim of a crime considered at sentencing, and neither he nor the insurance company that paid expenses related to his injuries can receive restitution. State v. Lee, 2008 WI App 185, 314 Wis. 2d 764, 762 N.W.2d 431, 08-0390.
When a court has considered the 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 where 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.
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 is 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.
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.
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.
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.
The statutory term “crime considered at sentencing" is defined in broad terms. It encompasses all facts and reasonable inferences concerning the defendant's activity related to the crime for which the defendant was convicted, not just those facts necessary to support the elements of the specific charge of which the defendant was 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.
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.
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.
The circuit court's finding that the victim met her 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 her 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.
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.
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.
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.
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.
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.
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.
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.
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.