State v. James A. Torpen, 2001 WI App 273, PFR filed 11/13/01
For Torpen: William E. Schmaal, SPD, Madison Appellate
Issue: Whether a court has authority to order, as restitutive conditions of probation, payment of obligations from prior, unrelated criminal cases.
¶14. Pursuant to Wis. Stat. § 973.20, a circuit court may order the payment of restitution to victims of crimes for which the defendant is being sentenced, as well as to victims of any crimes that are read in for sentencing purposes. See State v. Szarkowitz, 157 Wis. 2d 740, 744, 460 N.W.2d 819 (Ct. App. 1990). Szarkowitz recognized, however, that restitution was limited to those two classes of victims. See id. at 756 (reversing award of restitution to victim who had no relationship to the crime of conviction or to the crimes read in at sentencing). Thus, it is improper to order restitution to a party with no relationship to the crime of conviction or the read-in crimes. See State v. Mattes, 175 Wis. 2d 572, 581, 499 N.W.2d 711 (Ct. App. 1993). Based on Szarkowitz and Mattes, the circuit court had no authority to order restitution to Torpen’s previous victims because those crimes were not before the court at the time of sentencing.
¶15. The State argues, however, that the court was not ordering restitution pursuant to Wis. Stat. § 973.20, but instead was ordering the payment of outstanding restitution obligations as a general condition of probation pursuant to Wis. Stat. § 973.09(1)(a). We reject the State’s attempt to distinguish the basis of restitution ordered.
¶16. First, the probation statute expressly requires the circuit court to order restitution using the procedure outlined in Wis. Stat. § 973.20. See Wis. Stat. § 973.09(1)(b). Second, restitution ordered pursuant § 973.20 is a condition of probation, extended supervision or parole. See Wis. Stat. § 973.20(1r). Finally, we reject the proposition that § 973.09(1)(a) allows a court to order what is not permitted by § 973.20.