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Restitution — Defenses — Set-Off (Civil Settlement)

Herr v. Bradley D. DeBraska, 2006 WI App 29

Issue/Holding1Where the defendant and victim had fully settled a civil claim for defendant’s liability arising out of the crime, but the defendant’s wages were subsequently garnished by the State to satisfy the restitution order in the criminal case, the trial court properly exercised discretion to reopen the civil judgment, to determine whether the civil judgment should be offset against the restitution order, ¶18.


¶19      Next, we consider whether the trial court’s order offsetting the entire civil judgment was proper. …

¶20       Although there was a motion hearing, there was no testimony taken. The trial court considered only affidavits from counsel, arguments from counsel, and written documents including the stipulations and agreements. The civil settlement agreement did not mention the criminal restitution order, referring only to “all claims between and among the parties to the release,” and did not identify the specific damages included in the $20,000 settlement. Likewise, the stipulation to criminal restitution did not indicate the damage elements that made up the $17,209.88 order.[3] We conclude that the motion hearing did not provide sufficient evidence for the trial court to determine whether the damages covered by the civil judgment were, in whole or in part, the same special damages covered by the criminal restitution order. The record is not sufficiently developed for the trial court to have made the determinations necessary to decide whether to grant the motion to offset, or for us to review the findings and conclusions. Therefore, we remand for a hearing and determination on those issues.[4]

Offset is permissible under § 973.20(8); see also William Olson v. Kaprelian, 202 Wis. 2d 377, 550 N.W.2d 712 (Ct. App. 1996). However, offset is available only for special, not general, damages awarded in a civil claim and the defendant must prove what portion of the civil judgment represented special damages, State v. Laura Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Ct. App. 1999). As the passage quoted above indicates, there wasn’t sufficient indication as to what extent the civil judgment was based on special damages, and remand is to establish that fact.


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