This split, recommended-for-publication opinion, merits further review. Scott drove M.S.’s truck without her permission and damaged it in the process. Undamaged, the truck’s Kelly Bluebook value was $2,394. M.S. testified that she did not want to repair the truck, but the circuit court nevertheless awarded restitution based on the cost of repair: $5,486.37. It also found that Scott, who was mentally ill and living on a minuscule SSDI benefit, was able to pay it. Judges Grogan and Neubauer affirmed. Reilly dissented.
Section 973.20(2), which governs restitution, provides:
If a crime considered at sentencing resulted in damage to or loss or destruction of property, the restitution order may require that the defendant:
(a) Return the property to the owner or the owner’s designee;
(b) If the return of the property under par. (a) is impossible, impractical or inadequate, pay the owner or owner’s designee the reasonable repair or replacement cost or the greater of:
1. The value of the property on the date of its damage, loss or destruction; or
2. The value of the property on the date of sentencing, less the value of any part of the property returned, as of the date of its return. The value of retail merchandise shall be its retail value.
All of the judges seem to agree that this statute allows the court to base restitution on: (1) the reasonable repair cost, (2) the reasonable replacement cost, or (3) the value of the property on the date of damage or at the time of sentencing, which ever is greater. According to the majority, nothing in the statute requires the circuit court to choose “the value of the property at the time of damage” when that value is significantly less than “the reasonable repair cost.” Opinion, ¶14.
The majority says that two decades ago it established that “circuit courts have the discretion to order restitution for repair costs that exceed the value of property in State v. Kennedy, 190 Wis. 2d 252, 260, 528 N.W.2d 9 (Ct. App. 1994).” Opinion, ¶16.
Reilly argues that Kennedy does not stand for that broad proposition. Kennedy involved the theft of a car in which the victim had invested substantial time and money to restore. The court noted that the theft deprived the victim of “the fruits of his labor, plus the loss of future opportunity to complete restoration.” Id. at 261. The court held that requiring the defendant to pay repair costs greater than the car’s fair market value “may not be appropriate in every case.” But circuit courts should have the discretion to consider the “unique facts” of a case in awarding restitution. Id.
Reilly notes that this case presents no “unique facts.” M.S. testified that she had no intention of investing over $5,400 to repair a car that would then be worth $2,294 at best. This gives M.S. a $3,000 windfall to buy a truck worth twice the truck she had (before Stone damaged it). He contends that the majority has created a blanket rule allowing circuit courts to award the cost of repair whenever it exceeds the value of victim’s property before it was damaged or lost. Kennedy does not support that rule. Dissent, ¶30.
At the time of sentencing, Stone was under a Chapter 51 commitment, lived in a group home, received $773 per month for SSDI, and from that paid $660 for rent, food and a cell phone. That left him $113 per month (or $3.75 per day) in disposable income. The majority shrugged: “Although $113 may strike some as a small amount of disposable income, it was extra money for Stone after all his monthly bills were paid.” It ordered Stone to pay M.S. twice the value of her property from that paltry sum. Opinion, ¶23.
Reilly sided with the majority on the “ability to pay” issue only because Stone (or his lawyer) failed to present evidence that he had basic human needs to be covered by his extra $3.75 per day. Reilly said that could not take judicial notice of those needs. Dissent, ¶31 n.1
Query whether federal law even allows Stone’s SSDI to be paid out as restitution?