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Restitution award upheld despite evidence of inflated repair estimates

State v. Paul J. Williquette, 2013AP2127-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity

What happens when a restitution award is twice the victim’s actual repair costs? In this case, not much. Williquette was ordered to pay restitution based upon State-submitted repair estimates.  Later, he moved for sentence modification claiming the actual (and lesser) amount the victim paid for repairs was a “new factor” justifying a reduced restitution award.  The COA held that by not challenging the estimates at sentencing, Williquette stipulated to their reasonableness and that the actual repair costs did not amount to a “new factor.”

Failure to challenge amount of restitution:

¶18 . . . Williquette had the option at sentencing to present evidence that the victim’s estimates were not reasonable because they were obtained from an overly expensive repair shop or because they did not account for the age of the victim’s tires.  See Wis. Stat. § 973.20(13)(c). Williquette did not do so, but instead, stipulated to the amount of restitution that the State proposed based on those estimates.  See State v. Szarkowitz, 157 Wis. 2d 740, 749, 460 N.W.2d 819 (Ct. App. 1990) (where a defendant has notice of the claimed amount of restitution and does not object to that sum, the circuit court may proceed as though that amount is not in dispute); see also State v. Leighton, 2000 WI App 156, ¶¶54-56, 237 Wis. 2d 709, 616 N.W.2d 126.  Indeed, Williquette’s counsel also suggested to the court at the time of sentencing that other penalties in the sentence need not be harsher because Williquette “understands he is going to be paying restitution which is significant.”  No one at the hearing used the word “stipulation,” but as the court explained in Szarkowitz, “The use of the word ‘stipulate’ in [§] 973.20(13)(c) does not imply a requirement of a formal written stipulation, signed by the defendant, as to the amount of restitution claimed.”  157 Wis. 2d at 749. 

Actual costs not “highly relevant” to restitution award:

20      Second, regardless of the fact that the money actually spent by the victim was not known by either of the parties or the court at the time of the plea and sentencing hearing, Williquette fails to persuade me that this factor is “highly relevant” to the amount of restitution that the circuit court ordered.  Even if the court was aware of this amount, it was within its discretion to set restitution based upon the victim’s estimates, which were treated at sentencing as legitimate estimates of reasonable repair and clean up costs.  See Kennedy, 190 Wis. 2d at 259-60; see also Boffer, 158 Wis. 2d at 663.  If Williquette had presented this same evidence to the circuit court at the time of the sentencing hearing, namely, that the victim had found ways to economize in an attempt to return his vehicle to its pre-damage condition, the circuit court would still have had the discretion to set restitution based upon the victim’s estimates.  Therefore the amount that the victim decided to spend in his efforts to repair his vehicle is not “highly relevant” to the court’s decision to award restitution based upon legitimate estimates of the reasonable repair and clean up costs.


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