State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate
Issue: Whether restitution may be ordered under § 973.20 for overtime police costs.
¶20. The collective effect of Schmaling and Howard-Hastings is the following. A governmental entity can, in the appropriate case, be a victim entitled to restitution. (Howard-Hastings). Where the defendant’s conduct indirectly causes damage or loss to the governmental entity, the entity is a passive, not a direct, victim and is not entitled to restitution. (Schmaling). Conversely, where the defendant’s conduct directly causes damage or loss to the governmental entity, the entity is a direct or actual victim and is entitled to restitution. (Howard-Hastings and Schmaling).
¶23. In carrying out his criminal activities, Ortiz did not cause any damage, loss or harm to the law enforcement. Were it otherwise, those persons would be direct or actual victims and would have valid restitution claims for such direct losses. And if the city had absorbed those losses, it might also be a direct or actual victim and entitled to restitution under Schmaling and Howard-Hastings. But that is not the situation before us. The police, not the city, were the actual victims of Ortiz’s offenses. As such, the city cannot recoup its collateral expenses in apprehending Ortiz.
The court also rejects the idea that the restitution could be ordered as an item of cost, § 973.06(1)(a) — the expenses were incurred in the normal course of a police operation, and thus were mere “general internal operating expenses,” which cannot support a cost order. ¶24 n. 6. In addition, the court declines to uphold the restitution order as a condition of probation, largely “because the trial court did not defend the restitution order as a condition of probation when Ortiz brought the issue to the fore in the postconviction proceeding.” ¶26.