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Restitution — Special Damages — Generally

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen, SPD, Madison Appellate

Issue/Holding:

¶12      First, restitution is limited to “special damages … which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.” Wis. Stat. § 973.20(5)(a). The term “special damages” as used in the criminal restitution context means any readily ascertainable pecuniary expenditure paid out because of the crime. Longmire, 272 Wis. 2d 759, ¶14. Section 973.20(5)(a) contemplates that restitution ordered in a criminal case will generally render actual civil litigation unnecessary. Longmire, 272 Wis. 2d 759, ¶32. Thus, the ultimate question in deciding whether an item of restitution is “special damages” within the meaning of the statute is whether the item is a readily ascertainable pecuniary expenditure attributable to the defendant’s criminal conduct that could be recovered in any type of civil action, such as conversion or breach of contract. See id., ¶¶15, 26; Loutsch, 259 Wis. 2d 901, ¶12.

 

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