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Restitution — Limitations — Federal ERISA Preemption — pension fund assets

State v. David W. Oakley, 2000 WI 37, 234 Wis. 2d 528, 609 N.W.2d 786, reversing State v. Oakley, 226 Wis. 2d 437, 594 N.W.2d 827 (Ct. App. 1999)
For Oakley: Timothy T. Kay

Issue: “(W)hether a circuit court may require payment of an old, unpaid fine that was imposed in a prior sentence as a condition of probation for a new conviction when violation of the condition of probation exposes the defendant to incarceration in county jail for more than six months.” ¶2.

Holding: Imposing payment of the old fine as a condition of the new probation violates § 973.07, at least where the potential exposure for violating probation would be more than six months incarceration (adopting position of dissent in court of appeals). Id.

Oakley was convicted of an offense carrying a 10-year maximum. The trial court put him on probation with a withheld sentence, and imposed a condition that he pay a prior, otherwise unrelated fine. The court of appeals said that this was a reasonable condition that would rehabilitate Oakley’s defiant attitude. The supreme court now says that the condition violates § 973.07, which allows commitment for up to six months in jail for failure to pay a fine. Because of this limitation, the trial court erred as matter of law in conditioning probation on payment of a fine where exposure for non-payment would be more than six months, ¶15. § 973.07 specifically limits a trial court’s otherwise broad authority to impose “reasonable and appropriate” conditions, ¶26.

The dissenters would permit this condition, with the proviso that failure to comply with the condition could result in no more than six months in jail. They also note that this sort of condition “is a common practice in some circuit courts in this state[.]” The net effect, they say, will be to preclude conditioning probation on discharging unpaid fines except in a few misdemeanor cases, ¶¶29-31. They apparently agree that revocation and sentence of more than six months would violate § 973.07, ¶36. Their solution would allow a defendant to be confined as a further condition of probation, for up to six months, for non-payment,1999 ¶32. (Note: What if the prior obligation was itself a condition of a now-lapsed probation? In that variation of this problem, double jeopardy may well preclude its resurrection in the new probation. L.C. v. State, 114 Wis.2d 223, 338 N.W.2d 506 (Ct. App. 1983).)

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