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Restitution – Ability to Pay as Factor ( Dicta)

State v. Anthony D., 2006 WI App 218
For Anthony D.: Susan E. Alesia, SPD, Madison Appellate

Dicta: ¶7 n. 2:

We note that the language of the juvenile restitution statute differs from that of the criminal restitution statute, Wis. Stat. § 973.20. The criminal statute does not require the court to make a finding that the defendant can pay the restitution amount, though it does direct the court to avoid creating an “undue hardship” for the defendant, § 973.20(1r), and to consider the defendant’s earning capacity and the financial resources of both the defendant and the defendant’s dependents, § 973.20(13)(a). This court has in one case interpreted the latter provision to mean that a court may not order restitution in a criminal case that exceeds a defendant’s ability to pay within the term of the sentence. State v. Loutsch, 2003 WI App 16, ¶25, 259 Wis. 2d 901, 656 N.W.2d 781. We are unsure, however, whether this remains the law in view of Huml v. Vlazny, 2006 WI 87, __Wis. 2d__, 716 N.W.2d 807. Though Huml did not squarely address the question, our supreme court did pass over without comment a total restitution figure that wildly exceeded the total amount of payments the defendant was ordered to make. Id., ¶7 (total restitution set at $140,000; monthly payments of $425 over three years of probation would total $15,300). The Huml court also stated that the primary purpose of restitution is to compensate victims and make them whole. Id., ¶20.

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