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Restitution – Limitations — court’s competency to order refund

State v. James D. Minniecheske, 223 Wis.2d 493, 590 N.W.2d 17 (Ct. App. 1998)
For Minniechske: Jane K. Smith

Issue: Whether the sentencing court possessed authority to order refund of money ($1500+) improperly seized from Minniecheske’s prison account to satisfy restitution.


We conclude that the trial court correctly amended the judgment of conviction to remove the restitution obligation.[1]  We further agree that, given the procedural context of Minniecheske’s postconviction motions, the sentencing court lacks competency to issue a money judgment against the State even though the claim arises from improperly seized assets pursuant to restitution order entered in the criminal proceedings.  Each of the requests for relief Minniecheske filed are designed for purposes other than obtaining a money judgment against the State.

Nonetheless, we agree with Minniecheske that there must be a remedy that can enable him to successfully recover the money the State improperly seized.  The nature of that remedy is not, however, before us.  Minniecheske seems to acknowledge that if the doctrine of sovereign immunity precluded this claim, he could file a claim with the state claims board which is specifically authorized to remedy claims such as those Minnecheske asserts.  Sections 16.007 and 775.01, STATS.  If sovereign immunity does not preclude Minniecheske’s claim, he could initiate a direct suit against the State for a refund of the improperly seized restitution.   Further, citizens may also assert claims against the State by seeking the introduction of private bills of relief through their state representatives.  State v. P.G. Miron Constr. Co., 181 Wis.2d 1045, 1052, 512 N.W.2d 499, 503 (1994).  Our conclusion that the criminal court is without competency to enter a money judgment against the State, therefore, does not leave Minniecheske without remedy.

>Minniecheske filed his request pursuant to the collateral-attack statute,  § 974.06: Would it make any difference if he had been on direct appeal, Rule 809.30? Certainly direct-appeal rights are more expansive; § 974.06 as relevant, for example, only allows the court to correct the sentence, which doesn’t quite get at what Minniecheske wants. The COA doesn’t make this distinction between direct and collateral review and indeed its analysis of the issue as involving a claim against the state suggests that the distinction would be meaningless. Nonetheless, the court previously ordered the return of bail money illicitly seized from a bail deposit and applied to restitution, State v. Cetnarowski, 166 Wis. 2d 700, 713, 480 N.W.2d 790 (Ct. App. 1992), a possibly distinguishable holding because the issue was raised there on separate motion for return of bail money, rather than an attack on sentence (albeit, made to the sentencing court). Maybe the two cases are simply irreconcilable, in which event Minniecheske now controls, because it’s the more recent statement.

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