On Point: D. Type of punishment

State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶11. Second, Kuechler argues that “[e]ven if the size of the fine could be based exclusively on a guideline recommendation, the court here failed to give adequate reasons for choosing the more severe of two alternative guidelines.” We disagree. The court exercised appropriate discretion when it chose to impose a fine based on the guidelines that highlighted aggravating factors rather than on the guidelines that highlighted mitigating factors.

State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶13. Fourth, Kuechler contends that the trial court imposed the fine without first ascertaining his ability to pay. We agree. Because Kuechler timely raised the issue of ability to pay in his postconviction motion, the trial court had a duty to make a determination on that issue.

State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth

Issue/Holding: Where restitution was for counseling expenses, Johnson failed to show good cause for discovery of her counseling records. ¶¶28-30.

State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth

Issue/Holding: Because record is clear that trial court ordered restitution, court of appeals refuses to recharacterize (and uphold) order as condition of probation:

¶25                        As a final argument, the State contends that even if W.L.’s wages are not recoverable under WIS. STAT. § 973.20, the circuit court could have properly required repayment of the lost wages as a condition of probation under WIS.

State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth

Issue/Holding: Wages lost by a stepparent’s accompanying the victim to court aren’t subject to restitution; lost wages are limited to those persons identified in § 973.20(5)(b). ¶¶22-23.

Issue/Holding: A stepparent is not victim for § 973.20(1r) restitution purposes, ¶¶17-19. (However, a stepparent may qualify as an “other person,” under § 973.20(5)(d),

State v. James N. Storlie, 2002 WI App 163
For Storlie: William E. Schmaal, SPD, Madison Appellate

Issue: Whether the destruction of “stop sticks” caused by defendant’s flight from the police is properly subject to a restitution order.

Holding:

¶10…. (T)he government is entitled to restitution for losses incurred when it is a victim as a direct result of criminal conduct,

State v. Joseph A. Kayon, 2002 WI App 178
For Kayon: Ronald J. Sonderhouse

Issue/Holding: Both the replacement cost of a television stolen by the defendant, and rental fees of a television while the case was pending, may be recovered in restitution. The rental fees represent “loss of use” damage that could be claimed in a civil action and therefore qualify as a special damage.

(T)he standard to be applied to such recovery is that of reasonableness under all the circumstances of the particular case. 

State v. William A. Rouse, 2002 WI App 107, PFR filed 5/8/02
For Rouse: Morris D. Berman

Issue/Holding: Time spent by a bank’s salaried employees investigating the crime (forgery) is subject to restitution because,

while the bank’s employees were investigating Rouse’s forgeries, they were prevented from doing other work for the bank, and thus the bank lost all value of their services during that time.

State v. Kirk J. Bergquist, 2002 WI App 39
For Berhquist: Steven H. Gibbs

Issue: Whether the state’s refusal to return guns valued at between $5000 and $7,150, following conviction for disorderly conduct, violated the Eighth Amendment Excessive Fines Clause.

Holding:

¶8. Although the term “forfeiture” does not appear in this statute, our supreme court has recognized that the result of refusing to return a weapon to a person who committed a crime using the weapon is a forfeiture.

State v. Gary L. Gordon, 2002 WI App 53, reversed on other grounds, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: The trial court erroneously exercised discretion in imposing costs for the travel expense of an officer, in that this expense was necessitated by a change in trial date attributable primarily to the prosecution, not the defendant. ¶¶49-51.