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Restitution – Special Damages – “Loss of Use” – Rental Fees

State v. Joseph A. Kayon2002 WI App 178
For Kayon: Ronald J. Sonderhouse

Issue/Holding: Both the replacement cost of a television stolen by the defendant, and rental fees of a television while the case was pending, may be recovered in restitution. The rental fees represent “loss of use” damage that could be claimed in a civil action and therefore qualify as a special damage.

(T)he standard to be applied to such recovery is that of reasonableness under all the circumstances of the particular case… (D)amages for ‘loss of use’ should reflect (1) a time period reasonably required for replacement, including a reasonable time to determine whether the property is in fact repairable; and (2) an amount equal to that which was actually expended.

(¶¶7-9).

Because the trial court didn’t undertake this analysis, remand is ordered for a hearing on reasonableness of rental fees.

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