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Restitution — Causation — Nexus Must be Shown, Otherwise Defendant Entitled to Hearing

State v. Derrick L. Madlock, 230 Wis.2d 324, 602 N.W.2d 104 (Ct. App. 1999)
For Madlock: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether restitution may be ordered without a showing of causation or actual damages.

Holding: The record must show at least a minimal nexus between the defendant’s criminal conduct and the victim’s claimed damages, or the defendant is entitled to an evidentiary hearing.

Madlock was convicted of operating a motor vehicle without owner’s consent. Over objection, the trial court ordered restitution, even though the record showed neither that the car was damaged nor that Madlock had caused any damage that might have been incurred. The state first argues that he waived the restitution issue by objecting only to the restitution amount, not the existence of or his causal connection to damage. The court of appeals rejects the state’s argument as “too technical in the real world of contemporaneous objections”; the defense was taken by surprise when the trial court ordered restitution, the state not having requested it. The contemporaneous objection could, in any event, be taken to raise the current issue. (Note: The opinion doesn’t reject the idea that a contemporaneous objection to restitution is necessary; to the contrary, it seems to assume that it is. See also State v. Schmaling, 198 Wis. 2d 756, 762, 543 N.W.2d 555 (Ct. App. 1995).) On the merits, the court marshals various principles — restitution is “victim oriented,” and broadly construed in favor of recovery; nexus between crime may be required, but only in a very minimal way; the defendant’s connection to the crime similarly need be minimal — but the record still comes up short. Restitution isn’t ipso facto proper, contrary to the trial court’s apparent understanding. The record fails to show either actual damage to the car, or Madlock’s own responsibility for any damage (his offense was driving the car several days after it was stolen). An evidentiary hearing is necessary to determine these matters.


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