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Restitution – Settlement Agreement

State v. Theresa E. Palubicki, No. 2010AP555-CR, District 3

court of appeals decision (1-judge, not for publication); for Palubicki: Michael D. Petersen; BiC; Resp.; Reply

The burden of proving setoff rests with the defendant. Although Palubicki reached a settlement agreement with the hit-and-run victim, she did not meet her burden of proving that the agreement covered lost wages, therefore she is liable for them in restitution.

The trial court distinctly found, based on the victim’s imprecise testimony, that the settlement “apparently” covered “pain and suffering” but not lost income, ¶8. “Because Palubicki failed to present any evidence to the contrary, she failed to meet her burden of proof,” id. This remark probably means that the victim has a burden of production, which of course takes very little, and then the burden of proof shifts to the defendant. If the answer isn’t abundantly clear from the plain text of the agreement, then perhaps the only recourse is to have the attorney who drafted it testify — keeping in mind that the judge may waive the rules of evidence, § 973.20(14)(d), so that an affidavit or even a mere written statement may suffice.

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