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Restitution — Waiver of Objection

State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
For Leighton: Daniel Snyder


¶55 WISCONSIN STAT. § 973.20, governing restitution in criminal cases, “provides that a trial court ‘shall order the defendant to make full or partial restitution under this section to any victim of a crime,’ when imposing a sentence or probation for any crime.” State v. Hopkins, 196 Wis. 2d 36, 42, 538 N.W.2d 543 (Ct. App. 1995). In Hopkins, the presentence investigation report indicated certain restitution amounts. See id. at 41. At sentencing, neither the State nor the defendant mentioned restitution; however, when the trial court imposed its sentence, it also ordered restitution consistent with the amounts noted in the presentence report. See id. at 43-44. The defendant did not object to the restitution, and the trial court entered the judgment of conviction. See id. It was not until postconviction motions that the defendant sought to vacate the restitution order. See id. The Hopkins court recognized:

[I]n the absence of any objection to amounts claimed on a court-ordered restitution summary accompanying a presentence investigation, where a defendant has been given notice of the contents of that report and summary, the trial court is entitled to proceed on the understanding that the claimed amount is not in dispute, and so order restitution under [§] 973.20(13) ….

Id. at 42 (quoting State v. Szarkowitz, 157 Wis. 2d 740, 749, 460 N.W.2d 819 (Ct. App. 1990)).13 Because Hopkins received notice via the presentence report and further, failed to contest restitution at sentencing, this court determined that “[h]is failure to contest the issue at sentencing constituted a ‘constructive’ stipulation to the restitution order.” Id. at 44.

¶56 Here, Leighton first contested restitution in postconviction proceedings. Although the presentence investigation report did not specify an amount, it noted that a “substantial amount of restitution is expected.” At the sentencing hearing, the State specified the restitution amounts requested, including $27,146 for the property damage to Clark’s residence. In his argument at sentencing, Leighton never objected to this restitution amount, never requested a restitution hearing under WIS. STAT. § 973.20(13), and never objected when the court ordered restitution in the amount requested. Although Leighton did not receive notice of the specific restitution amount via the presentence report, he was on notice that a substantial amount of restitution was expected. He does not dispute that he failed to contest the restitution amount at sentencing. Accordingly, we conclude that Leighton constructively stipulated to the restitution order. See id. The trial court did not, therefore, err in setting the restitution amount.

13 WISCONSIN STAT. § 973.20(13)(c) provides in relevant part:

The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. The court shall give the defendant the opportunity to stipulate to the restitution claimed by the victim and to present evidence and arguments on the factors specified in par. (a). If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation. (Emphasis added.)

In State v. Szarkowitz, 157 Wis. 2d 740, 749, 460 N.W.2d 819 (Ct. App. 1990), this court held that “[t]he use of the word ‘stipulate’ in [§] 973.20(13)(c) does not imply a requirement of a formal written stipulation, signed by the defendant, as to the amount of restitution claimed.”


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