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Restitution — Defenses — Civil Settlement (Setoff)

William Olson v. Kaprelian, 202 Wis. 2d 377, 550 N.W.2d 712 (Ct. App. 1996)
For Olson: Terry W. Rose


The statutory section governing restitution allows a defendant to reduce civil damages awarded to the crime victim by amounts paid pursuant to a restitution order. See § 973.20(8), Stats. We read this statute to likewise enable a defendant to try to reduce the amount he or she owes because of a restitution award during settlement negotiations on the companion civil case. For such an agreement to be valid, however, the defendant must establish the “validity and amount” of this “setoff” in a hearing before the trial court conducting the civil action. Id. Thestatute places the burden on the defendant to establish that the outstanding restitution order has been included in the calculation of any civil settlement.5Applying these guidelines to this civil settlement, we conclude that Olson has failed to meet these mandates. The civil settlement was approved by the trial court. However, the court approving the settlement never conducted a hearing to test whether the restitution order was validly “set off.” See id. Indeed, the language of the settlement only refers to Kaprelian’s civil complaint. It makes no reference to the restitution order. We thus hold that Olson’s attempt to “set off” the restitution award failed to meet the requirements within § 973.20(8), Stats.


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