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Restitution – Ability to Pay not Limited by Length of Sentence or Probation

State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate

Issue: Whether the holding of State v. Mark M. Loutsch, 2003 WI App 16, ¶25, “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,” is valid.


¶2        On the question involving restitution ordered during a sentence or probation term, we hold that the statute, when read as a whole, clearly permits a circuit court to order full restitution so long as it properly considers the defendant’s ability to pay in setting the total restitution and, where applicable, in setting the amount that must be paid during any probation, parole, or extended supervision. The statute gives no indication that that power is curtailed when probation is involved. In fact, it is significant that in providing for converting unpaid restitution to civil judgments, the legislature, it seems clear, recognized that there would be circumstances where all the necessary restitution amounts often would not and could not be paid before the completion of the sentence or probationary period.

¶3        We therefore answer the certification from the court of appeals by holding that when a court has considered the defendant’s ability to pay in setting restitution, the length of the term of probation or of the sentence does not have any limiting effect on the total amount of restitution that may be ordered. Here the circuit court considered the defendant’s ability to pay in ordering restitution, as the statute requires, and because the circuit court did not err in considering all the evidence presented at the restitution hearing or in awarding restitution to the victims in accord with the statute, we affirm the circuit court’s order.

¶5        … Loutsch is incorrect when it says the defendant’s ability to pay during the sentence is what the statute requires the court to consider. [7] The portion of Loutsch that has been interpreted as limiting restitution in that manner is overruled.

Fernandez’ argument that “where probation is ordered, the statute caps restitution at the amount that the defendant has the ability to pay within the period of probation” is, the court concedes, supported by statutory text, ¶¶27-29. Alas, “such technical or superficial reading of the statute” can’t stand up to the court’s “careful reading,” ¶30.Now for a bit of a tangent, the following little nugget:

¶46      The fact that restitution is provided “in addition to any other penalty authorized by law” (Wis. Stat. § 973.20(1r)) lends support to the view that restitution was viewed by the legislature as a distinct penalty and suggests that in the absence of any indication in the statute that restitution is intended to limit the sentence or the sentence is intended to limit restitution, we should not infer such limitations.

Recall that some years back, the court of appeals’ reading of that provision led to rejection, as “too simplistic,” the idea that this “penalty” is “potential punishment”—thus, exposure to restitution need not be made part of a guilty plea colloquy, State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995). Granted, we are now a bit afield from the immediate question in Fernandez, but only in a technical or superficial sense. As the court’s own stark reference to the “distinct penalty” that is restitution indicates, the rationale of Dugan is increasingly indefensible. Keep in mind, too, the obvious: you give up your right to a jury trial on damages when a restitution order is entered, notwithstanding Wis. Const. Art. I § 5 (“The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy[.]”). Shouldn’t a guilty plea defendant at least know that this non-punishment penalty will be a consequence of the plea? And so it comes to pass that a dishwasher making $5.15 per hour must pay $68k restitution during a 2-year term of probation—but he wasn’t entitled to know about this consequence of his plea before entering it. Careful reading led to overturn of Loutsch; why not the same treatment for Dugan?

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