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Restitution — Ability to Pay — Determination May not Be Deferred

State v. Mark M. Loutsch, 2003 WI App 16, PFR filed 1/17/03; X-PFR filed 1/31/03
For Loutsch: Charles B. Vetzner


¶25. Read together, these sections plainly contemplate that the court order at sentencing an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence-in this case, during the term of imprisonment and subsequent extended supervision and probation. These sections do not permit a court to defer consideration of the defendant’s ability to pay when evidence of the defendant’s ability to pay is presented. The reference to “present and future earning ability of the defendant,” Wis. Stat. § 973.20(13)(a)3, plainly contemplates that the court will be making a prediction of what a defendant will be able to pay in the future.

State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995) distinguished, on the ground that Dugan didn’t assert inability to pay and therefore waived that argument. ¶27. Fines may be treated differently, see State v. Milashoski, 163 Wis.2d 72, 89, 471 N.W.2d 42 (1991) (court can set fine payable upon release from prison, though amount and/or payment schedule subject to on-going review). If so, it might be because fines are punitive in nature, but in any event there’s no statutory language identical to that involved in this case.

UPDATE: The subsequently-decided State v. Bruce J. Kuechler, 2003 WI App 245, ¶¶14-15, entitles the defendant to an ability-to-pay determination at sentencing with respect to fines. However, in dicta, State v. Anthony D., 2006 WI App 218, ¶7 n. 2, the court of appeals expressed doubt concerning continued viability of Loutsch.


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