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Restitution – Hearing – Procedure – Notice, Discovery

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


¶59      Fernandez additionally argues that the lack of advance written notice of the Dalka and CNR claims violated his due process rights. In response, the State contends that Fernandez’s due process rights were protected by the statute, which provides for “an opportunity to be heard, personally or through counsel, to present evidence and to cross-examine witnesses called by other parties.” Wis. Stat. § 973.20(14)(d).

¶60      We agree with the State. The statute leaves it to the court to “conduct the proceeding so as to do substantial justice between the parties according to the rules of substantive law and may waive the rules of practice, procedure, pleading or evidence . . . .” Id. The statute explicitly notes that “[d]iscovery is not available except for good cause shown. . . .” Id. Here, Fernandez was given the opportunity to have counsel challenge the claims presented and to cross-examine the witnesses. Given the aims of the restitution statute——to balance the needs of the victim to recover losses without complicated legal barriers against the needs of the defendant to ascertain the validity of the claims——the legislature clearly elected to give the circuit court a great deal of discretion in conducting a restitution hearing. We should not impose arbitrary deadlines where the legislature has not done so and where the defendant had a full opportunity to challenge the claims.

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