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SCOW to consider limits on Wisconsin’s restitution statute

State v. Shawn T. Wiskerchen, 2016AP1541-CR, petition for review of an unpublished court of appeals opinion granted 3/14/18; affirmed 1/4/19case activity (including briefs).

Issue (composed by On Point):

In State v. Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, the court of appeals required a defendant to pay restitution for a security system that the victim bought before the date of the crime for which the defendant was convicted.

Must Queever be overturned because it is impossible for a crime committed on a certain date to cause losses on an earlier date? If not, what are the limits of Queever and of the definition of “a crime considered at sentencing” for restitution purposes? Can the definition include alleged prior-committed crimes?

Our post on the court of appeals’ split opinion provides the backdrop for this issue. Basically, Wiskerchen pled “no contest” to burglarizing the victim’s home one day. He left her home carrying only a backpack but he was required to pay restitution for 74 items totaling over $32,000, including things like a guitar amplifier, a gaming system, power tools and a crock pot–things that could not fit in his back pack. A majority of the court of appeals affirmed the restitution order on the grounds that the victim testified that he had stolen things from her home several times prior to the burglary of which he was convicted.

The dissent argued that the case law interpreting § 973.20(1r) has expanded the statute’s reach to the point where restitution hearings could turn into minitrial regarding uncharged, alleged crimes requiring criminal discovery, witness testimony and documentary evidence. We’ll learn the boundaries (if any) of a “crime considered at sentencing” when SCOW decides this case next term.

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