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Restitution – Limitations – “Gifted Funds” in Prisoner’s Account as Source

State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper

Issue: Whether the sentencing court may order that DOC distribute “gifted” (as opposed to wage-based) funds in a prisoner’s account to satisfy a restitution obligation.


¶12      We observe that Wis. Stat. § 973.20 does not limit the consideration of a defendant’s ability to pay out of funds derived from only earnings or wages. In interpreting the restitution statute, we construe its provisions “broadly and liberally in order to allow victims to recover their losses as a result of a defendant’s criminal conduct.” State v. Anderson, 215 Wis. 2d 673, 682, 573 N.W.2d 872 (Ct. App. 1997). Applying this interpretative principle we conclude that “financial resources” refers to all financial resources available to the defendant at the time of the restitution order, including gifted funds, except where otherwise provided by law.  [6] Because a circuit court may consider all sources of funds held by a defendant in determining the amount of restitution, it follows that a court may also order a defendant to pay restitution out of all funds held or available to a defendant, including gifted funds. We therefore conclude that, under § 973.20, a circuit court has the authority to order a defendant to pay restitution from all of his or her “financial resources,” including gifted funds, available at the time of the restitution order and as funds become available to the defendant at a later time.

The trial court’s reliance on Wis. Admin. Code § DOC 309.49(4)(e) (DOC may disburse prisoner’s funds to satisfy “claims reduced to judgment”) is rejected, because this code provision doesn’t address the circuit’s court authority to issue the order in the first place (¶10). The court also embellishes State v. Troy B. Baker, 2001 WI App 100, ¶17 (trial court has authority under § 303.01(8)(b) to order disbursement of restitution from prison wages), suggesting that its  invocation of § 303.01(8)(b) rather than § 973.20 was misplaced (¶9 n. 3); nonetheless, Baker “was correctly decided.” The court also stresses “the strong equitable policy underlying” § 973.20, namely “to compensate the victim.” Obviously, then, the statute is construed broadly rather than narrowly.

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