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Restitution — Limitations — Recharacterizing as Condition of Probation

State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth

Issue/Holding: Because record is clear that trial court ordered restitution, court of appeals refuses to recharacterize (and uphold) order as condition of probation:

¶25                        As a final argument, the State contends that even if W.L.’s wages are not recoverable under WIS. STAT. § 973.20, the circuit court could have properly required repayment of the lost wages as a condition of probation under WIS. STAT. § 973.09(1)(a).  As authority for this argument, the State cites State v. Heyn, 155 Wis. 2d 621, 456 N.W.2d 157 (1990).  In Heyn, the supreme court concluded that the restitution provisions of § 973.09(1)(b) (1985-86) do not restrict the broad authority of the circuit court to condition probation on the satisfaction of any requirement which is reasonable and appropriate under § 973.09(1)(a) (1985-86).

¶26                        While we do not dispute the State’s reading of Heyn, we note that the published cases demonstrate that, depending on the posture of the case, courts have treated requests to re-characterize restitution as a reasonable and appropriate condition of probation in different ways.  See, e.g.State v. Ortiz, 2001 WI App 215, ¶26, 247 Wis. 2d 836, 634 N.W.2d 860; State v. Beiersdorf, 208 Wis. 2d 492, 500-03, 561 N.W.2d 749, 753-54 (Ct. App. 1997).  Because the record in this case is clear that the circuit court ordered Johnson to pay the lost wages as restitution and because Johnson challenged the order under the restitution statute before the circuit court, we decline the State’s invitation to re-characterize the order as a reasonable and appropriate condition of probation.  See Ortiz, 2001 WI App 215 at ¶26.  Accordingly, we conclude that the circuit court erroneously exercised its discretion in requiring Johnson to repay J.M.K.’s stepfather’s lost wages as restitution.

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