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Restitution order upheld

State v. Guadalupe Ronzon, 2015AP498, 1/26/16, District 1 (one-judge decision; ineligible for publication); case activity

Ronzon challenges the restitution award in her conviction of failing to fulfill her Wis. Stat. § 346.67 duty upon striking a vehicle with her car.

She does not claim an inability to pay, or argue that her crime did not cause the pecuniary injury to the victim, or that the restitution award was for “general damages” contrary to Wis. Stat. § 973.20(5)(a). (¶¶16, 18). She argues only that the victim was required to provide documentary evidence of her losses, rather than simple testimony, and that her testimony was inconsistent. (¶20).

The court first rejects the state’s argument that Ronzon forfeited her right to appeal these issues by not filing a postconviction motion. Noting that both sufficiency of the evidence and issues previously raised can be the subject of a direct appeal, the court continues:

The inconsistencies in A.E.’s testimony were adequately addressed at the restitution hearing. As the finder of fact, the circuit court considered A.E.’s testimony and resolved any inconsistencies prior to issuing the restitution order. See State v. Hahn, 221 Wis. 2d 670, 683, 586 N.W.2d 5 (Ct. App. 1998). Furthermore, an appellant need not bring a postconviction motion prior to filing a direct appeal in order to preserve a sufficiency of the evidence argument. WIS. STAT. RULE § 809.30(2)(h). Accordingly, we conclude that Ronzon’s decision not to bring a postconviction motion in the circuit court challenging the restitution order is not fatal to this appeal.

(¶9).

On the merits, the court finds no authority for Ronzon’s claim that written verification of loss is required to sustain a restitution award, given that testimony is competent evidence. (¶17). As for the inconsistencies in the victim’s testimony, the court simply notes that the trial court, as fact finder, is the one to resolve them. (¶¶21-22).

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