On Point blog, page 25 of 26
Restitution — Defenses — Contributory Negligence
State v. Chad J. Knoll, 2000 WI App 135, 237 Wis.2d 384, 614 N.W.2d 20
Issue: Whether contributory negligence is a defense to restitution.
Holding: ¶¶16, 17:
Restitution is not a claim that is owned by an individual but a remedy of the State…. To allow a defendant who has already been convicted of a crime to focus on the action of a victim to avoid restitution defeats this purpose because it permits him to evade responsibility for his own actions….
Restitution — Causation — “Natural and Probable Consequence” of Crime — Damage Caused by Police While Defendant Resisted Arrest
State v. Freeman Canady, 2000 WI App 87, 234 Wis. 2d 261, 610 N.W.2d 147
For Canady: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a defendant, convicted of resisting arrest, can be ordered to pay restitution for damage caused by a police officer in the course of subduing him.
Holding: Because the damage was a natural consequence of the defendant’s resisting, the defendant was a substantial factor in causing that damage and can be required to make restitution for it.
Consecutive Sentences – Sentence Consecutive to Future Revocation
State v. James E. Cole, 2000 WI App 52, 233 Wis. 2d 577, 608 N.W.2d 432
Issue: Whether a sentence can be ordered to run “consecutive to revocation” when the defendant’s parole has not yet been revoked.
Holding: A court has authority, under Wis. Stat. § 973.15(2)(a), to make the current sentence consecutive to a revocation of parole, even though the revocation has not yet occurred.
Consecutive Sentences — Authority to Stay Sentence Until Release or Discharge on Ch. 980 Commitment
State v. David Carneal White, 2000 WI App 147, 237 Wis.2d 699, 615 N.W.2d 667
For White: Jeffrey A. Kingsley
Issue: Whether a court has authority to stay a sentence until the defendant is released or discharged from an otherwise unrelated Ch. 980 commitment.
Holding: The purposes of § 971.17 NGI and Ch. 980 SVP commitments being similar (¶¶8-9), the reasoning of State v.
Restitution – Limitations – Federal ERISA Preemption – Pension Fund Assets
State v. Richard J. Kenyon, 225 Wis.2d 657, 593 N.W.2d 491 (Ct. App. 1999)
For Kenyon: Rex Anderegg
Issue/Holding: Employee Retirement Income Security Act trumps Victims’ Rights. Kenyon was convicted of stealing about $150,000, and was ordered to pay restitution by “voluntarily” withdrawing funds from his pension fund. The COA reverses, holding that ERISA’s preemption of state attempts to assign or alienate pension benefits prohibits this effort to “create[] an equitable exception to ERISA’s anti-alienation clause.”
Restitution — Defenses — Setoff
State v. Laura Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Ct. App. 1999)
For Walters: Todd W. Bennett
Issue/Holding: Setoff is available to reduce the amount of special damages. The defendant has the burden of proving facts necessary to this defense. Since the victim here suffered general as well as special damages, Walters was therefore required to prove what part if any of a $25,000 insurance settlement went to special damages (given that the victim had also suffered general damages in an indeterminate amount).
Restitution — Defenses — Accord & Satisfaction
State v. Laura Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Ct. App. 1999)
For Walters: Todd W. Bennett
Issue/Holding: The COA refuses to acknowledge accord and satisfaction as a restitution defense. Restitution, the court reasons, “is not a claim which a defendant owns, as a civil claim is. It is a remedy that belongs to the State.” While a goal is to make the victim whole, liability for restitution is grounded “on the State’s penal goals that affect the defendant,
Restitution — Causation — Nexus Must be Shown, Otherwise Defendant Entitled to Hearing
State v. Derrick L. Madlock, 230 Wis.2d 324, 602 N.W.2d 104 (Ct. App. 1999)
For Madlock: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether restitution may be ordered without a showing of causation or actual damages.
Holding: The record must show at least a minimal nexus between the defendant’s criminal conduct and the victim’s claimed damages, or the defendant is entitled to an evidentiary hearing.
Restitution — Special Damages — Definitions — Audit, etc.
State v. Nils V. Holmgren, 229 Wis.2d 358, 599 N.W.2d 876 (Ct. App. 1999)
For Holmgren: William E. Appel
Holding: Holmgren’s theft, related to unauthorized use of company’s credit card, gives rise to various restitution issues, all turning on the distinction between special and general damages. (Special damages — those which do not necessarily arise from the wrongful act “and represent the victim’s actual pecuniary losses” —
Costs – jail assessment – § 302.46(1) – fine or forfeiture required
State v. Lisa A. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999)
For Carter: Paul G. LaZotte.
Issue/Holding: The jail assessment in §§ 302.46(1) & 814.60(2)(ag) is contingent on imposition of a fine or forfeiture.
Section 814.60(2)(ag), STATS., provides that “[i]n addition to any fine imposed, a defendant shall be required to pay any … [j]ail assessment imposed by s. 302.46(1).” Section 302.46(1),