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Restitution: Federal Sentencing Court Authority to Order, After 90-Day Deadline, Where Only Amount Has Been Left Open

Dolan v. United States, USSC No. 09-367, 6/14/10

This case concerns the remedy for missing a statutory deadline. The statute in question focuses upon mandatory restitution for victims of crimes. It provides that “the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.” 18 U. S. C. §3664(d)(5). We hold that a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution—at least where, as here, the sentencing court made clear prior to the deadline’s expiration that it would order restitution, leaving open (for more than 90 days) only the amount.

Federal construction of the Mandatory Victims Restitution Act, and not therefore binding on our state version, § 973.20.As to which, our courts have long held that the time limit for setting restitution is merely directory, State v. Perry, 181 Wis. 2d 43, 53, 510 N.W.2d 722 (Ct. App. 1993); State v. Edward W. Johnson, Jr., 2002 WI App 166 (18-month delay upheld, because time limit merely regulatory, not jurisdictional). But see State v. Scott Edward Ziegler, 2005 WI App 69 (14-year delay not tolerable, but only because no facts adduced to support delay of such magnitude). Back to the opinion at hand. It takes an analytical approach that, though not binding on state practice, might be worth keeping in mind. Very briefly: certain statutes “impose a ‘jurisdictional’ condition upon, for example, a court’s authority to hear a case, to consider pleadings, or to act upon motions that a party seeks to file”; others “are more ordinary ‘claims-processing rules, rules that do not limit a court’s jurisdiction, but rather regulate the timing of motions or claims brought before the court”; and in still others, “a deadline seeks speed by creating a time-related directive that is legally enforceable but does not deprive a judge or other public official of the power to take the action to which the deadline applies if the deadline is missed.”

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