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SCOTUS: How does a defendant recover costs, fees and restitution after his conviction is reversed?

Nelson v. Colorado, USSC No. 15-526, (April 20, 2017), reversing and remanding Colorado v. Nelson, 364 P.3d 866 (2015); SCOTUSblog page (inlcuding links to briefs and commentary).

This decision establishes that a State cannot force an exonerated defendant to file a civil suit and prove his innocence by clear and convincing evidence in order to recover costs, fees, and restitution he paid upon conviction.

Nelson’s conviction was reversed on appeal and remanded for a new trial where he was acquitted of all charges. In a companion case, defendant Madden’s convictions were reversed and vacated and the State of Colorado elected not to appeal or retry the case.  Nelson and Madden had paid costs, fees and restitution in the $4,000-$8,000 range. Having won, they wanted their money back. Under Colorado law as it existed then (it has since changed), they had to file a civil claim for relief under the Exoneration Act, which required the claimant to prove his actual innocence by clear and convincing evidence in order to recover compensation for time served and any fine, penalty, court costs or restitution paid as a result of his wrongful conviction. SCOTUS now declares that scheme unconstitutional:

When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction? Our answer is yes. Absent conviction of a crime, one is presumed innocent. Under the Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process. Slip. Op. at 1.

Applying Matthews v. Elderidge, 424 U.S. 319 (1976)’s test for assessing the validity of Colorado’s statutory scheme, SCOTUS explained:

Colorado’s scheme fails due process measurement because defendants’ interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.  Slip op. at 10 (emphasis supplied).

So what does this mean for exonerated defendants in Wisconsin? The answer is unclear. The Wisconsin case that figured in the parties’ SCOTUS briefs is State v. Minniecheske, 223 Wis. 2d 493, 590 N.W.2d 17 (1998), which holds that if a defendant files a claim to recover wrongfully paid restitution via a petition for writ of habeas corpus, a §974.06 motion, or a motion to modify sentence, the circuit court lacks competency to order a refund.  The defendant’s remedy is to sue the State of Wisconsin for improperly seized restitution via Wis. Stat. § 775.01 or to introduce a private bill for relief through their state representative via §16.007.   Like the Colorado statute at issue in this case, Wisconsin’s § 775.01 appears to require “clear and convincing” evidence of innocence. But it further requires that the defendant to prove that he did not, by his act or failure to act, contribute to bring about his conviction and imprisonment.  That doesn’t seem to comport with SCOTUS’s holding here. Minniecheske suggests that Wisconsin defendants may also try asking their state representative to introduce a bill for relief on their behalf. Good luck with that. Perhaps a challenge to Wisconsin’s statutory scheme  based on this new case is in order.

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