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Restitution – Special Damages — Expenditures by Victim to Correct Shoddy Work, Theft by Contractor Case

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether expenditures by victims to correct shoddy work done by defendant in theft by contractor case may be subject to restitution.


¶23. We conclude that these costs, incurred by the homeowners and admittedly arising out of their dealings with Longmire, are not recoverable as a separate item of restitution under Wis. Stat. § 973.20(5)(a). Even if the work-correction expenditures could have been recovered in a civil action against Longmire for breach of contract, they would not constitute “special damages … which could be recovered in a civil action against [him] for his … conduct in the commission of a crime considered at sentencing.” Section 973.20(5)(a) (emphasis added).

¶24. We have no quarrel with the State’s contention that a criminal defendant can be required to pay restitution for “special damages,” even if not directly caused by the criminal conduct, so long as some “causal nexus” is established between the crimes considered at sentencing and the damage for which restitution is sought. See, e.g.State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147. However, the $3,100 allowed in the restitution order for additional construction costs was not attributable to the fact that Longmire converted the lion’s share of the $30,000 deposit he was given, or that he failed to return unexpended portions of the deposit after the same was demanded, or that he failed to notify the homeowners of a delay in completion of the contract. Rather, the “precipitating cause,” id., for these expenditures was construction work, shoddily performed, but legally procured by Longmire in furtherance of his contractual obligations.

¶26. … The poor quality of the work actually performed under the contract, however, was purely a civil wrong and the criminal restitution statute cannot be enlisted to remedy it.

Another way of looking at this – though the court didn’t put it in exactly these terms – is that the shoddy work was an intervening circumstance that severed any connection between the crime and the injurious result; no causation, in a word, which is essentially what the court said.

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