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State v. Gary R. Sampson, 2010AP1930-CR, District 3, 2/1/11

court of appeals decision (1-judge, not for publication); for Sampson: Donna L. Hintze, SPD, Madison Appellate; case activity; Sampson BiC; State Resp.; Reply

Sampson was guilty of theft for keeping a down payment to make improvements to a business without finishing the work. However, he is liable for restitution, § 973.20, only for the downpayment he illicitly coverted, not for the owner’s full costs to complete the contract. State v. Longmire, 2004 WI App 90, 272 Wis. 2d 759, 681 N.W.2d 534 (victim’s costs to correct construction deficiencies in a theft by contractor case are not recoverable as a separate item of restitution under Wis. Stat. § 973.20(5)(a)), deemed controlling.

¶8        In Longmire, we specifically held that costs incurred to correct shoddy work performed by a contractor “are not recoverable as a separate item of restitution under Wis. Stat. § 973.20(5)(a).”  Id., ¶23.  Just as the homeowners’ remediation costs were not recoverable in Longmire, Saletri cannot recover the amount he paid to complete his project and correct Sampson’s substandard work.  As in Longmire, the criminal conduct considered at sentencing was Sampson’s conversion of the down payment, not his breach of the contract.  See id., ¶¶23-24.  The only pecuniary loss Saletri suffered as a result of Sampson’s criminal conduct was the loss of the down payment.  See id., ¶19 (citing Topzant v. Koshe, 242 Wis. 585, 588, 9 N.W.2d 136 (1943) (explaining that the amount of damages for conversion is the value of items wrongfully taken)).  Thus, under § 973.20(5)(a), Saletri is entitled to recover his down payment, but he is not entitled to recover those amounts he paid other contractors to complete Sampson’s contract and correct Sampson’s substandard work.[3]

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