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Restitution order upheld

State v. Jason Napiwocki, 2016AP1264-CR, 5/4/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court didn’t erroneously exercise its discretion when it issued a final restitution order that adopted the findings of fact and conclusions of law of the court commissioner who conducted the restitution hearing.

Napiwocki was convicted of theft by a contractor arising out of a home remodeling project. He disputed the $65,200 in restitution requested by the state, so the court sent the case to a court commissioner for a restitution hearing under § 973.20(13)(c)4. After taking testimony from the victim and Napiwocki and hearing arguments, the commissioner issued findings of fact and conclusions of law setting restitution at $51,184, reflecting offsets for money Napiwocki spent on the project. (¶¶2-9). The circuit court reviewed the commissioner’s findings and conclusions and issued a restitution order that basically adopted the commissioner’s amount and conclusions. (¶10).

Napiwocki argues the circuit court erroneously exercised its discretion by failing to provide an adequate explanation of its conclusion. (¶¶11-12). But an exercise of discretion may be reversed only if the court applied the wrong legal standard or its conclusion isn’t based on a logical interpretation of the facts. State v. Canady, 2000 WI App 87, ¶6, 234 Wis. 2d 261, 610 N.W.2d 147. Neither of those things happened here: “There is no suggestion in the record that the court applied an incorrect legal standard. Further, … the restitution order is grounded in a logical interpretation of the facts in the record, including the victim’s testimony that Napiwocki and his assistant worked only minimal hours and that the victim needed to spend the additional money that was necessary to repair and complete what Napiwocki had done.” (¶15).

Napiwocki implies the circuit court should’ve done a de novo review of his challenges to the proposed restitution order, but the court of appeals disagrees: “[T]he circuit court does not have statutory authority for de novo review after a commissioner has conducted a restitution hearing, and the court need not demonstrate its independent decision-making authority by altering the proposed findings or offering explanation beyond what has already been given.” (¶16).

Finally, the circuit court didn’t err by refusing to offset restitution with additional amounts Napiwocki testified he spent on the project. Napiwocki didn’t provide supporting receipts or work logs supporting his testimony, so the court commissioner and circuit court reasonably concluded he didn’t prove he spent the money and was entitled to the offset. (¶¶17-18).

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