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DOC may collect restitution from inmate even after a sentence has expired

State ex rel. Drazen Markovic v. Jon E. Litscher, 2018 WI App 44; case activity (including briefs)

The Department of Corrections has the authority to take certain funds from an inmate’s account to pay the restitution ordered in a case even though the inmate has finished serving the sentence in that case.

Markovic was convicted of theft by fraud in 1995, sentenced to 7 years in prison, and ordered to pay restitution as “a condition of sentence.” (¶5). Markovic was never paroled and ended up spending the entire 7 years (and beyond) in prison because he is serving a sentence in a different case. (¶¶5, 15). At no time during that 7 years did DOC try to collect restitution, even though it could have under State v. Baker, 2001 WI App 100, 243 Wis. 2d 77, 626 N.W.2d 862, which held that DOC has authority to withhold restitution from an inmate’s prison earnings under § 303.01(8)(b) (DOC may distribute “earnings” of an inmate to satisfy “obligations … which have been reduced to judgment that may be satisfied according to law”) and § 973.20(10) (court may require a defendant to pay restitution immediately). Instead, DOC waited 14 years, until 2016, to start collecting restitution. (¶6).

Markovic challenged this belated collection action administratively, lost, and then filed a certiorari review in the circuit court. (¶¶7-8). The circuit court held that DOC lost the authority to take money from Markovic’s prison account after 2002, when his theft sentence expired, and it ordered DOC to return the money it had collected (about $600 at that point), so DOC appealed. (¶8 & n.3).

The court of appeals agrees with the circuit court—up to a point. First, like the circuit court, the court of appeals reject DOC’s claim that § 303.01(8)(b) and Baker give it authority to collect restitution for the expired case because the restitution order was an obligation reduced to judgment:

¶16     DOC seemingly argues that the restitution ordered in Markovic’s 1995 judgment of conviction was an order that had a life apart from the prison sentence imposed in that same order—that is, that the restitution order did not expire when the sentence was completed and, therefore, remained an enforceable order in the judgment of conviction. If DOC means to make this argument, DOC fails to take into account the controlling statutory scheme, which directs that restitution is a condition of parole served which, necessarily, ties the restitution obligation to service of the sentence imposed.

¶17     Wisconsin Stat. § 973.20(1r) (1995-96) provides that “[r]estitution ordered under this section is a condition of probation or parole served.” To state the obvious, parole does not survive the expiration of a sentence. See, e.g., Wis. Stat. § 302.11(6) (providing that an inmate released on parole “is subject to all conditions and rules of parole until the expiration of the sentence”).

¶18     It follows that, under the plain language of Wis. Stat. § 973.20(1r) (1995-96), conditions of parole do not survive the completion of a sentence, which means that Markovic was subject to the restitution order in the 1995 judgment only until his sentence ended in December 2002. At that point, although Markovic actually served no parole time, the possibility of his serving parole ended as did the possibility of his satisfying any condition of parole, including the restitution ordered in the 1995 case by operation of the statute, as a condition of his parole.

DOC’s reliance on Baker is misplaced, too. It argues that § 303.01(8)(b) itself creates the “obligation” DOC is authorized to collect, but “[t]hat is patently incorrect.” Baker was premised on the existence of a lawful, pre-existing obligation based on some other legal authority that DOC could collect. (¶23).

But the court of appeals agrees DOC has authority to collect restitution for the expired case under another statute, § 301.32(1). The statute gives DOC broad authority to use money “delivered to an employee of any state correctional institution for the benefit of a prisoner” for “the benefit of the prisoner.” Courts have said that defendants benefit from paying restitution because it aids in their rehabilitation, e.g.Huggett v. State, 83 Wis. 2d 790, 798, 266 N.W.2d 403 (1978), so it is reasonable to conclude DOC properly used money delivered to Markovic’s prison account “for the benefit of” Markovic under § 301.32(1). And nothing in that statute implies it is limited to obligations due on sentences the defendant is still serving. (¶¶32-38).

But there’s a rub in relying on § 301.32: That statute allows DOC to use money “delivered to” DOC for the benefit of a prisoner; that means it doesn’t authorize paying restitution using the prisoner’s earnings (according to this summary, 5¢ per hour for the voluntary unassigned; 12¢ to 42¢ per hour for standard institution jobs; or an average of 96¢ per hour for Badger State Industries jobs). (¶¶32, 38, 39). It may be that DOC improperly took some of Markovic’s earnings, though it’s not clear. Nor does it matter at this juncture. A court in a certiorari action has only limited powers, and awarding monetary relief isn’t one of them. Markovic will have to find some other remedy (perhaps, DOC suggests, filing a request with the state claims board). (¶¶39-43).

Because Markovic’s case arose in 1995, the court doesn’t address § 973.20(11)(c), which was enacted in April 2016 and requires a circuit court to order defendants to authorize DOC to collect restitution from the defendant’s “wages and other moneys held in the defendant’s prisoner account….” (¶38 n.4). There may be more cases like Markovic’s amongst the thousands of inmates sentenced before April 2016, but if the new statute’s mandate is being followed the issue will gradually disappear.

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