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Restitution – Finality and Double Jeopardy

State v. Eric Archie Armstrong, District 2/1, 2010AP1056-CR, 5/30/12

court of appeals decision (not recommended for publication); for Armstrong: Ellen Henak, SPD, Milwaukee Appellate; case activity

Setting restitution four years after sentencing didn’t violate double jeopardy principles, turning principally on whether Johnson “had a legitimate expectation of finality in the first judgment,” State v. Greene, 2008 WI App 100, ¶15, 313 Wis. 2d 211, 756 N.W.2d 411.

¶16      While Armstrong presents several factors to support his claim that he had a legitimate expectation of finality, we must reject them because competing factors tip the balance in favor of affirming the restitution award.  We do agree with Armstrong that he did not engage in any misconduct in obtaining his sentence.  See id.  We do not agree, however, that the fact that Armstrong had already served a portion of his sentence evinces an expectation of finality in this particular case because he served less than half of his total prison sentence and less than a quarter of his total sentence.  Compare Ziegler, 280 Wis. 2d 860, ¶19 (concluding that defendant had expectation of finality in part because he had already served his prison sentence and was on parole).  Similarly, we do not agree that the fact that the court had set the restitution award at zero when Armstrong began serving his sentence is dispositive because the State made known at sentencing that Hoeft had significant medical expenses stemming from the shooting, and the trial court noted that restitution would in fact be ordered at some point in the future.  Additionally, Hoeft made numerous, if not always successful, attempts to obtain restitution that Armstrong knew about.[2]  Moreover, with the exception of an extremely small percentage of the total, Armstrong did not dispute the amount of the award, even though he had the opportunity to do so. Compare id. (“[B]y the time the court held the restitution hearing, much of the documentation concerning the victim’s damages had been lost or destroyed and the victim could not exactly recall the origin of his calculations.”).  Also, the fact that Armstrong did not initially pursue postconviction relief is of no consequence because Armstrong’s appeal has not yet concluded.  See United States v. DiFrancesco, 449 U.S. 117, 137 (1980) (suggesting that a defendant has no expectation of finality in sentence until appeal is concluded); United States v. Daddino, 5 F.3d 262, 265 (7th Cir. 1993) (same).  Furthermore, we do not agree that this case is analogous to a situation in which the trial court misapplied the law.  See State v. Willet, 2000 WI App 212, ¶¶1, 6, 238 Wis. 2d 621, 618 N.W.2d 881.  Rather, this was a case where the victim’s attempts to obtain restitution were ongoing,[3] and the trial court was ultimately convinced that restitution was warranted.

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