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Restitution – Limitations – Time Limit / Double Jeopardy

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

Issue/Holding: Restitution order amendment, directing DOC to disburse funds from the prisoner’s account, did not violate double jeopardy although the amendment occurred three years after the original order:

¶16      Greene’s double jeopardy argument focuses on the fact that DOC, in applying the original restitution order, did not distribute funds from his accounts to pay restitution in the three years prior to the entry of the amended restitution order. Greene argues that after three years of not paying restitution he had a legitimate expectation of finality in the original restitution order, and that the subsequent amended order, which directed DOC to start paying restitution from Greene’s prison accounts, violated double jeopardy principles.

¶18      We conclude that the amended restitution order in this case did not violate Greene’s double jeopardy rights. The amended restitution order merely clarified the original order, which was arguably ambiguous on the issue of when payment of restitution would occur. The original restitution order was made during the court’s oral sentencing decision and occurred immediately after the court discussed the conditions of extended supervision imposed on Greene. The timing of the court’s oral restitution order could be reasonably understood as either falling under the conditions for extended supervision or as part of the overall sentencing order. Once the ambiguity was brought to the court’s attention, the court clarified its intent that restitution be paid while Greene was in prison and, if not fully satisfied, after he left prison under terms to be established by his supervising agent. The amended order for restitution reflected this clarification. The amended restitution order did not alter the restitution amount or any other term set forth in the original order. The amended order therefore did not dash any expectation of finality that Greene reasonably had in the original restitution order.

The sentencing court set the amount of restitution, but didn’t expressly direct that payments be taken from the prisoner’s account; as a result, DOC determined that it could not draw restitution payments until release on ES. When brought to the circuit court’s attention three years later, the court amended the restitution order to direct that payments be taken from the prison account. And here we are. The double jeopardy clause offers at least some protection against increased restitution, State v. Scott Edward Ziegler, 2005 WI App 69 (determining amount of restitution 14 years after an initial, “to be determined” order, violated DJ). The court distinguishes that case (¶¶18-19), on the ground that the amendment here merely clarified the original order. (In brief: Greene’s restitution amount, unlike Ziegler’s, was properly set originally, so all the amendment did was clarify when and how it was to be discharged; Ziegler’s amount had not been set, and at some point – the court didn’t quite say when – he acquired an “expectation of finality” in the status quo, which was: no amount set.)

Lastly, the court rejects the related claim that the amendment violated DJ because it worked an increase in the sentence (¶20). Given the construction that the amendment merely clarified the original order, this last point was a foregone conclusion. But that shouldn’t obscure the deeper, structural problem, which is the notion that restitution is not “punishment” but is instead a collateral consequence of conviction, e.g., State v. Anthony A. Parker, 2001 WI App 111¸ ¶9. What this means, then, apart from outliers such as Ziegler, is that DJ challenges to restitution face an uphill struggle.

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