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Other Wisconsin Victims' Rights Statutes♦ 906.15 Exclusion of witnesses 906.15 Exclusion of witnesses. (1) At the request of a party, the judge or court commissioner shall order witnesses excluded so that they cannot hear the testimony of other witnesses. The judge or court commissioner may also make the order of his or her own motion. (2) Subsection (1) does not authorize exclusion of any of the following: (a) A party who is a natural person. (b) An officer or employee of a party which is not a natural person designated as its representative by its attorney. (c) A person whose presence is shown by a party to be essential to the presentation of the party's cause. (d) A victim, as defined in s. 950.02 (4), in a criminal case or a victim, as defined in s. 938.02 (20m), in a delinquency proceeding under ch. 938, unless the judge or court commissioner finds that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile. The presence of a victim during the testimony of other witnesses may not by itself be a basis for a finding that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile. (3) The judge or court commissioner may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended. History: Sup. Ct. Order, 59 W (2d) R1, R202 (1973); 1991 a. 32; 1997 a. 181. 967.10 Waiting area for victims and witnesses. (1) In this section: (a) "Victim" has the meaning given in s. 950.02 (4). (b) "Witness" has the meaning given in s. 950.02 (5). (2) If an area is available and use of the area is practical, a county shall provide a waiting area for a victim or witness to use during court proceedings that is separate from any area used by the defendant, the defendant's relatives and defense witnesses. If a separate waiting area is not available or its use is not practical, a county shall provide other means to minimize the contact between the victim or witness and the defendant, the defendant's relatives and defense witnesses during court proceedings. History: 1997 a. 181. 971.08(1)(d) Inquiry Before a Plea Inquire of the district attorney whether he or she has complied withs. 971.095 (2) 971.095 Consultation with and notices to victim. (1) In this section: (a) "District attorney" has the meaning given in s. 950.02 (2m). (b) "Victim" has the meaning given in s. 950.02 (4). (2) In any case in which a defendant has been charged with a crime, the district attorney shall, as soon as practicable, offer all of the victims in the case who have requested the opportunity an opportunity to confer with the district attorney concerning the prosecution of the case and the possible outcomes of the prosecution, including potential plea agreements and sentencing recommendations. The duty to confer under this subsection does not limit the obligation of the district attorney to exercise his or her discretion concerning the handling of any criminal charge against the defendant. (3) At the request of a victim, a district attorney shall make a reasonable attempt to provide the victim with notice of the date, time and place of scheduled court proceedings in a case involving the prosecution of a crime of which he or she is a victim and any changes in the date, time or place of a scheduled court proceeding for which the victim has received notice. This subsection does not apply to a proceeding held before the initial appearance to set conditions of release under ch. 969. (4) If a person is arrested for a crime but the district attorney decides not to charge the person with a crime, the district attorney shall make a reasonable attempt to inform all of the victims of the act for which the person was arrested that the person will not be charged with a crime at that time. (5) If a person is charged with committing a crime and the charge against the person is subsequently dismissed, the district attorney shall make a reasonable attempt to inform all of the victims of the crime with which the person was charged that the charge has been dismissed. (6) A district attorney shall make a reasonable attempt to provide information concerning the disposition of a case involving a crime to any victim of the crime who requests the information. History: 1997 a. 181. 971.10 Speedy trial. (1) In misdemeanor actions trial shall commence within 60 days from the date of the defendant's initial appearance in court. (2) (a) The trial of a defendant charged with a felony shall commence within 90 days from the date trial is demanded by any party in writing or on the record. If the demand is made in writing, a copy shall be served upon the opposing party. The demand may not be made until after the filing of the information or indictment. (b) If the court is unable to schedule a trial pursuant to par. (a), the court shall request assignment of another judge pursuant to s. 751.03. (3) (a) A court may grant a continuance in a case, upon its own motion or the motion of any party, if the ends of justice served by taking action outweigh the best interest of the public and the defendant in a speedy trial. A continuance shall not be granted under this paragraph unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial. (b) The factors, among others, which the court shall consider in determining whether to grant a continuance under par. (a) are: 1. Whether the failure to grant the continuance in the proceeding would be likely to make a continuation of the proceeding impossible or result in a miscarriage of justice. 2. Whether the case taken as a whole is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation within the periods of time established by this section. 3. The interests of the victim, as defined in s. 950.02 (4). (c) No continuance under par. (a) may be granted because of general congestion of the court's calendar or the lack of diligent preparation or the failure to obtain available witnesses on the part of the state. (4) Every defendant not tried in accordance with this section shall be discharged from custody but the obligations of the bond or other conditions of release of a defendant shall continue until modified or until the bond is released or the conditions removed. History: 1971 c. 40 s. 93; 1971 c. 46, 298; 1977 c. 187 s. 135; 1979 c. 34; 1993 a. 155; 1997 a. 181. 971.105 Child victims and witnesses; duty to expedite proceedings. In all criminal and delinquency cases, juvenile fact-finding hearings under s. 48.31 and juvenile dispositional hearings involving a child victim or witness, as defined in s. 950.02, the court and the district attorney shall take appropriate action to ensure a speedy trial in order to minimize the length of time the child must endure the stress of the child's involvement in the proceeding. In ruling on any motion or other request for a delay or continuance of proceedings, the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of a child victim or witness. History: 1983 a. 197; 1985 a. 262 s. 8; 1993 a. 98; 1995 a. 77. 971.315 Inquiry upon dismissal. Before a court dismisses a criminal charge against a person, the court shall inquire of the district attorney whether he or she has complied with s. 971.095 (2). History: 1997 a. 181. 972.14 Statements before sentencing. (1) In this section: (ag) "Crime considered at sentencing" means any crime for which the defendant was convicted and any read-in crime, as defined in s. 973.20 (1g) (b). (b) "Victim" has the meaning specified in s. 950.02 (4). (2) Before pronouncing sentence, the court shall ask the defendant why sentence should not be pronounced upon him or her and allow the district attorney, defense counsel and defendant an opportunity to make a statement with respect to any matter relevant to the sentence. In addition, if the defendant is under 21 years of age and if the court has not ordered a pre-sentence investigation under s. 972.15, the court shall ask the defendant if he or she has been adjudged delinquent under ch. 48, 1993 stats., or ch. 938 or has had a similar adjudication in any other state in the 4 years immediately preceding the date the criminal complaint relating to the present offense was issued. NOTE: Sub. (2) is shown as affected by two acts of the 1997 legislature and as merged by the reviser under s. 13.93 (2) (c). (2m) Before pronouncing sentence, the court shall inquire of the district attorney whether he or she has complied with s. 971.095 (2) and with sub. (3) (b), whether any of the victims of a crime considered at sentencing requested notice of the date, time and place of the sentencing hearing and, if so, whether the district attorney provided to the victim notice of the date, time and place of the sentencing hearing. (3) (a) Before pronouncing sentence, the court shall determine whether a victim of a crime considered at sentencing wants to make a statement to the court. If a victim wants to make a statement, the court shall allow the victim to make a statement in court or to submit a written statement to be read in court. The court may allow any other person to make or submit a statement under this paragraph. Any statement under this paragraph must be relevant to the sentence. (b) After a conviction, if the district attorney knows of a victim of a crime to be considered at sentencing, the district attorney shall make a reasonable attempt to contact that person to inform him or her of the right to make or provide a statement under par. (a). Any failure to comply with this paragraph is not a ground for an appeal of a judgment of conviction or for any court to reverse or modify a judgment of conviction. History: 1987 a. 27; 1989 a. 31; 1995 a. 77; 1997 a. 73, 181, 205; s. 13.93 (2) (c). 972.15 Pre-sentence investigation. (1) After a conviction the court may order a pre-sentence investigation, except that the court may order an employee of the department to conduct a pre-sentence investigation only after a conviction for a felony. (2) When a pre-sentence investigation report has been received the judge shall disclose the contents of the report to the defendant's attorney and to the district attorney prior to sentencing. When the defendant is not represented by an attorney, the contents shall be disclosed to the defendant. (2c) If the defendant is being sentenced under s. 973.01 and he or she satisfies the criteria under s. 302.045 (2) (b) and (c), the person preparing the pre-sentence investigation report shall include in the report a recommendation as to whether the defendant should be eligible for the challenge incarceration program under s. 302.045. (2m) The person preparing the pre-sentence investigation report shall make a reasonable attempt to contact the victim to determine the economic, physical and psychological effect of the crime on the victim. The person preparing the report may ask any appropriate person for information. This subsection does not preclude the person who prepares the report from including any information for the court concerning the impact of a crime on the victim. (2s) If the defendant is under 21 years of age, the person preparing the pre-sentence investigation report shall attempt to determine whether the defendant has been adjudged delinquent under ch. 48, 1993 stats., or ch. 938 or has had a similar adjudication in any other state in the 4 years immediately preceding the date the criminal complaint relating to the present offense was issued and, if so, shall include that information in the report. NOTE: Sub. (2s) is shown as affected by two acts of the 1997 legislature and as merged by the reviser under s. 13.93 (2) (c). (3) The judge may conceal the identity of any person who provided information in the pre-sentence investigation report. (4) After sentencing, unless otherwise authorized under sub. (5) or ordered by the court, the pre-sentence investigation report shall be confidential and shall not be made available to any person except upon specific authorization of the court. (5) The department may use the pre-sentence investigation report for correctional programming, parole consideration or care and treatment of any person sentenced to imprisonment or the intensive sanctions program, placed on probation, released on parole or extended supervision or committed to the department under ch. 51 or 971 or any other person in the custody of the department or for research purposes. The department may make the report available to other agencies or persons to use for purposes related to correctional programming, parole consideration, care and treatment, or research. Any use of the report under this subsection is subject to the following conditions: (a) If a report is used or made available to use for research purposes and the research involves personal contact with subjects, the department, agency or person conducting the research may use a subject only with the written consent of the subject or the subject's authorized representative. (b) The department or the agency or person to whom the report is made available shall not disclose the name or any other identifying characteristics of the subject, except for disclosure to appropriate staff members or employees of the department, agency or person as necessary for purposes related to correctional programming, parole consideration, care and treatment, or research. History: 1983 a. 102; 1987 a. 27, 227; 1991 a. 39; 1993 a. 213; 1997 a. 73, 181, 205, 283; s. 13.93 (2) (c). 973.20 Restitution. (1g) In this section: (a) "Crime considered at sentencing" means any crime for which the defendant was convicted and any read-in crime. (b) "Read-in crime" means any crime that is uncharged or that is dismissed as part of a plea agreement, that the defendant agrees to be considered by the court at the time of sentencing and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted. (1r) When imposing sentence or ordering probation for any crime for which the defendant was convicted, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record. Restitution ordered under this section is a condition of probation, extended supervision or parole served by the defendant for a crime for which the defendant was convicted. After the termination of probation, extended supervision or parole, or if the defendant is not placed on probation, extended supervision or parole, restitution ordered under this section is enforceable in the same manner as a judgment in a civil action by the victim named in the order to receive restitution or enforced under ch. 785. (2) If a crime considered at sentencing resulted in damage to or loss or destruction of property, the restitution order may require that the defendant: (a) Return the property to the owner or owner's designee; or (b) If return of the property under par. (a) is impossible, impractical or inadequate, pay the owner or owner's designee the reasonable repair or replacement cost or the greater of: 1. The value of the property on the date of its damage, loss or destruction; or 2. The value of the property on the date of sentencing, less the value of any part of the property returned, as of the date of its return. The value of retail merchandise shall be its retail value. (3) If a crime considered at sentencing resulted in bodily injury, the restitution order may require that the defendant do one or more of the following: (a) Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric and psychological care and treatment. (b) Pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation. (c) Reimburse the injured person for income lost as a result of a crime considered at sentencing. (d) If the injured person's sole employment at the time of the injury was performing the duties of a homemaker, pay an amount sufficient to ensure that the duties are continued until the person is able to resume performance of the duties. (4) If a crime considered at sentencing resulted in death, the restitution order may also require that the defendant pay an amount equal to the cost of necessary funeral and related services under s. 895.04 (5). (4m) If the defendant violated s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.07 or 948.08 and sub. (3) (a) does not apply, the restitution order may require that the defendant pay an amount, not to exceed $10,000, equal to the cost of necessary professional services relating to psychiatric and psychological care and treatment. The $10,000 limit under this subsection does not apply to the amount of any restitution ordered under sub. (3) or (5) for the cost of necessary professional services relating to psychiatric and psychological care and treatment. (5) In any case, the restitution order may require that the defendant do one or more of the following: (a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing. (b) Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom a crime considered at sentencing was committed resulting from the filing of charges or cooperating in the investigation and prosecution of the crime. (c) Reimburse any person or agency for amounts paid as rewards for information leading to the apprehension or successful prosecution of the defendant for a crime for which the defendant was convicted or to the apprehension or prosecution of the defendant for a read-in crime. (d) If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section. (6) Any order under sub. (5) (c) or (d) shall require that all restitution to victims under the order be paid before restitution to other persons. (7) If the court orders that restitution be paid to more than one person, the court may direct the sequence in which payments are to be transferred under sub. (11) (a). If more than one defendant is ordered to make payments to the same person, the court may apportion liability between the defendants or specify joint and several liability. If the court specifies that 2 or more defendants are jointly and severally liable, the department or the clerk to whom payments are made under sub. (11) (a) shall distribute any overpayments so that each defendant, as closely as possible, pays the same proportion of the ordered restitution. (8) Restitution ordered under this section does not limit or impair the right of a victim to sue and recover damages from the defendant in a civil action. The facts that restitution was required or paid are not admissible as evidence in a civil action and have no legal effect on the merits of a civil action. Any restitution made by payment or community service shall be set off against any judgment in favor of the victim in a civil action arising out of the facts or events which were the basis for the restitution. The court trying the civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant. (9) (a) If a crime victim is paid an award under ch. 949 for any loss arising out of a criminal act, the state is subrogated to the rights of the victim to any restitution required by the court. The rights of the state are subordinate to the claims of victims who have suffered a loss arising out of the offenses or any transaction which is part of the same continuous scheme of criminal activity. (b) When restitution is ordered, the court shall inquire to see if an award has been made under ch. 949 and if the department of justice is subrogated to the cause of action under s. 949.15. If the restitution ordered is less than or equal to the award under ch. 949, the restitution shall be paid only to the general fund. If the restitution ordered is greater than the award under ch. 949, the general fund shall receive an amount equal to the award under ch. 949 and the balance shall be paid to the victim. (10) The court may require that restitution be paid immediately, within a specified period or in specified installments. If the defendant is placed on probation or sentenced to imprisonment, the end of a specified period shall not be later than the end of any period of probation, extended supervision or parole. If the defendant is sentenced to the intensive sanctions program, the end of a specified period shall not be later than the end of the sentence under s. 973.032 (3) (a). (11) (a) Except as otherwise provided in this paragraph, the restitution order shall require the defendant to deliver the amount of money or property due as restitution to the department for transfer to the victim or other person to be compensated by a restitution order under this section. If the defendant is not placed on probation or sentenced to prison, the court may order that restitution be paid to the clerk of court for transfer to the appropriate person. The court shall require the defendant to pay a surcharge equal to 5% of the total amount of any restitution, costs and attorney fees and any fines and related payments ordered under s. 973.05 (1) to the department or clerk of court for administrative expenses under this section. (b) The department shall establish a separate account for each person in its custody or under its supervision ordered to make restitution for the collection and disbursement of funds. A portion of each payment constitutes the surcharge for administrative expenses under par. (a). (12) (a) If the court orders restitution in addition to the payment of fines, related payments under s. 973.05 and costs under s. 973.06, it shall set the amount of fines, related payments and costs in conjunction with the amount of restitution and issue a single order, signed by the judge, covering all of the payments. If the costs for legal representation by a private attorney appointed under s. 977.08 are not established at the time of issuance of the order, the court may revise the order to include those costs at a later time. (b) Except as provided in par. (c), payments shall be applied first to satisfy the ordered restitution in full, then to pay any fines or related payments under s. 973.05, then to pay costs other than attorney fees and finally to reimburse county or state costs of legal representation. (c) If a defendant is subject to more than one order under this section and the financial obligations under any order total $50 or less, the department or the clerk of court, whichever is applicable under sub. (11) (a), may pay these obligations first. (13) (a) The court, in determining whether to order restitution and the amount thereof, shall consider all of the following: 1. The amount of loss suffered by any victim as a result of a crime considered at sentencing. 2. The financial resources of the defendant. 3. The present and future earning ability of the defendant. 4. The needs and earning ability of the defendant's dependents. 5. Any other factors which the court deems appropriate. (b) The district attorney shall attempt to obtain from the victim prior to sentencing information pertaining to the factor specified in par. (a) 1. Law enforcement agencies, the department of corrections and any agency providing services under ch. 950 shall extend full cooperation and assistance to the district attorney in discharging this responsibility. The department of justice shall provide technical assistance to district attorneys in this regard and develop model forms and procedures for collecting and documenting this information. (c) The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. The court shall give the defendant the opportunity to stipulate to the restitution claimed by the victim and to present evidence and arguments on the factors specified in par. (a). If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation. In other cases, the court may do any of the following: 1. Order restitution of amounts not in dispute as part of the sentence or probation order imposed and direct the appropriate agency to file a proposed restitution order with the court within 90 days thereafter, and mail or deliver copies of the proposed order to the victim, district attorney, defendant and defense counsel. 2. Adjourn the sentencing proceeding for up to 60 days pending resolution of the amount of restitution by the court, referee or arbitrator. 3. With the consent of the defendant, refer the disputed restitution issues to an arbitrator acceptable to all parties, whose determination of the amount of restitution shall be filed with the court within 60 days after the date of referral and incorporated into the court's sentence or probation order. 4. Refer the disputed restitution issues to a court commissioner or other appropriate referee, who shall conduct a hearing on the matter and submit the record thereof, together with proposed findings of fact and conclusions of law, to the court within 60 days of the date of referral. Within 30 days after the referee's report is filed, the court shall determine the amount of restitution on the basis of the record submitted by the referee and incorporate it into the sentence or probation order imposed. The judge may direct that hearings under this subdivision be recorded either by audio recorder or by a court reporter. A transcript is not required unless ordered by the judge. (14) At any hearing under sub. (13), all of the following apply: (a) The burden of demonstrating by the preponderance of the evidence the amount of loss sustained by a victim as a result of a crime considered at sentencing is on the victim. The district attorney is not required to represent any victim unless the hearing is held at or prior to the sentencing proceeding or the court so orders. (b) The burden of demonstrating, by the preponderance of the evidence, the financial resources of the defendant, the present and future earning ability of the defendant and the needs and earning ability of the defendant's dependents is on the defendant. The defendant may assert any defense that he or she could raise in a civil action for the loss sought to be compensated. The office of the state public defender is not required to represent any indigent defendant unless the hearing is held at or prior to the sentencing proceeding, the defendant is incarcerated when the hearing is held or the court so orders. (c) The burden of demonstrating, by the preponderance of the evidence, such other matters as the court deems appropriate is on the party designated by the court, as justice requires. (d) All parties interested in the matter shall have an opportunity to be heard, personally or through counsel, to present evidence and to cross-examine witnesses called by other parties. The court, arbitrator or referee shall conduct the proceeding so as to do substantial justice between the parties according to the rules of substantive law and may waive the rules of practice, procedure, pleading or evidence, except provisions relating to privileged communications and personal transactions or communication with a decedent or mentally ill person or to admissibility under s. 901.05. Discovery is not available except for good cause shown. If the defendant is incarcerated, he or she may participate by telephone under s. 807.13 unless the court issues a writ or subpoena compelling the defendant to appear in person. History: 1987 a. 398 ss. 39 to 41, 43; 1989 a. 31, 188; 1991 a. 39, 269; 1993 a. 213; 1995 a. 141, 161; 1997 a. 283. Judicial Council Note, 1987: Sub. (1) allows restitution to be ordered although the defendant is not placed on probation. It allows restitution to be made payable to the estate of a deceased victim. It requires restitution ordered to be a condition of probation or parole served by the defendant for the offense. Finally, it allows restitution unpaid at the time probation or parole supervision terminates to be enforced by the victim as a judgment creditor. See 18 USC 3662 (a), (c) and (h). Sub. (2) is patterned on 18 USC 3663 (b) (1) and prior s. 973.09 (1r), stats. Sub. (3) is patterned on 18 USC 3663 (b) (2). Paragraph (d) is patterned on s. 949.06 (1) (b) 3., stats. Sub. (4) is patterned on 18 USC 3663 (b) (3). Sub. (5) (a) and (b) is based on prior s. 973.09 (8) (a) and (b), stats. A new provision allows the court to order restitution of income lost by the victim while participating in the investigation and prosecution of the offense. Sub. (5) (c) is new. It allows the court to order restitution of rewards paid for information which helps solve or prosecute the offense. Sub. (5) (d) carries forward the provision of prior s. 973.09 (1) (b), stats., allowing restitution to insurers, sureties, etc. Sub. (6) is based on 18 USC 3663 (e) (1). Sub. (7) is new. It allows the court to direct the order of payment when there is more than one victim, and to apportion liability when more than one defendant is ordered to make restitution to the same person, or to specify joint and several liability. Sub. (10) is based on 18 USC 3663 (f). Sub. (11) (a) is based on prior s. 973.09 (1) (b) and (1m) (c), stats. Sub. (11) (b) is based on prior s. 973.09 (1m) (d), stats. Sub. (12) (a) is based on prior s. 973.09 (1m) (a), stats. Sub. (12) (b) is based on prior s. 973.09 (1m) (c), stats. Sub. (12) (c) is based on prior s. 973.09 (1m) (cm), stats. Sub. (13) (a) is patterned on 18 USC 3664 (a). Prior s. 973.09 (1m) (a), stats., similarly required the court to consider the defendant's ability to pay when determining the amount of restitution. Sub. (13) (b) is new. It makes the district attorney primarily responsible for obtaining information relating to the amount of loss suffered by any crime victim. Law enforcement, probation and parole, and victim assistance agencies must cooperate with the district attorney in this regard. The department of justice is directed to develop model forms and procedures for collecting victim loss data. See legislative audit bureau report No. 85_10, April 15, 1985, at 14_18. Sub. (13) (c) creates several optional procedures for resolving disputes over the amount of restitution without resort to a judicial evidentiary hearing as provided by prior s. 973.09 (1m) (b), stats. First, the defendant may stipulate to the district attorney's determination of the amount of victim loss, while reserving the right to seek a lower amount of restitution based on ability-to-pay factors. Second, the court may hear the dispute at the sentencing proceeding, or adjourn the matter for later hearing prior to imposing sentence. Third, the court may order restitution of items not in dispute, referring disputed issues for subsequent resolution. Fourth, the court, with the consent of the parties, may refer disputed restitution issues to an arbitrator, whose determination is final and binding. Fifth, the court may appoint a referee to conduct fact-finding into the disputed restitution issues, whose proposed findings must be presented to the court within 60 days. Sub. (14) (a) to (c) is based on 18 USC 3664 (d) and prior s. 973.09 (1m) (a), stats. Sub. (14) (d) is new. It is intended to allow restitution disputes to be heard in an informal way so that parties may participate effectively without the need for legal counsel. Restitution hearings are not governed by the rules of evidence. State v. Pope, 107 Wis. 2d 726 (Ct. App. 1982). [87 Act 398] In absence of objection to restitution summary, where defendant has received a copy, trial court may assume amount is not in dispute and may order restitution on that basis. In such cases, court need not make detailed findings under (13)(c). State v. Szarkowitz, 157 W (2d) 740, 460 NW (2d) 819 (Ct. App. 1990). Under (14)(b) defendant has burden to offer evidence concerning ability to pay. Where defendant fails to offer evidence, trial court may order restitution without making detailed findings as to (13)(a)1 through 4. State v. Szarkowitz, 157 W (2d) 740, 460 NW (2d) 819 (Ct. App. 1990). Application of bail toward payment of restitution is not permitted. State v. Cetna-rowski, 166 W (2d) 700, 480 NW (2d) 790 (Ct. App. 1992). Requiring a convicted defendant to deposit money for possible future counseling costs of victims was impermissible. State v. Handley, 173 W (2d) 838, 496 NW (2d) 725 (Ct. App. 1993). Restitution to a party with no relation on the record to the crime of conviction or to read-in crimes is improper. State v. Mattes, 175 W (2d) 572, 499 NW (2d) 711 (Ct. App. 1993). This section does not authorize restitution for non-pecuniary damages. State v. Stowers, 177 W (2d) 798, 503 NW (2d) 8 (Ct. App. 1993). Imposition of restitution order after commencement of the defendant's jail sentence did not constitute double jeopardy. State v. Perry, 181 W (2d) 43, 510 NW (2d) 722 (Ct. App. 1993). The time period for determining restitution under sub. (13) (c) 2. is directory not mandatory. State v. Perry, 181 W (2d) 43, 510 NW (2d) 722 (Ct. App. 1993). Restitution for read-in charges may be ordered without the defendant's personal admission to the read-in charge. State v. Cleaves, 181 W (2d) 73, 510 NW (2d) 143 (Ct. App. 1993). Sub. (1) imposes a mandatory duty on a court to provide for restitution; a sentence not providing restitution is illegal and subject to amendment to provide restitution. State v. Borst, 181 W (2d) 118, 510 NW (2d) 739 (Ct. App. 1993). Repayment to police department of money used by police to buy drugs from a defendant is not authorized by this section. State v. Evans, 181 W (2d) 978, 512 NW (2d) 259 (Ct. App. 1994). Interest on a restitution award is not allowed. State v. Hufford, 186 W (2d) 461, 522 NW (2d) 26 (Ct. App. 1994). A restitution award for the repair or replacement cost of a stolen or damaged item is not limited to the fair market value of that item as determined by the jury. State v. Kennedy, 190 W (2d) 252, 528 NW (2d) 9 (Ct. App. 1994). In the absence of specific objection at the time restitution is ordered, the trial court may proceed with the understanding that the defendant's silence is a constructive stipulation to the restitution, including the amount. State v. Hopkins, 196 W (2d) 36, 538 NW (2d) 543 (Ct. App. 1995). The expenses of fire fighting and clean up resulting from a crime could not be properly awarded to the county as restitution because the county did not have a direct relationship with the crime of record and was not a victim. State v. Schmaling, 198 W (2d) 757, 543 NW (2d) 555 (Ct. App. 1995). A restitution order is unaffected by bankruptcy proceedings. State v. Sweat, 202 W (2d) 366, 550 NW (2d) 709 (Ct. App. 1996). While a trial court may not as part of a restitution order assess general damages which compensate a victim for such things as pain and suffering, anguish or humiliation, it may award as a special damage any specific expenditure by the victim paid out because of the crime. State v. Behnke, 203 W (2d) 43, 553 NW (2d) 265 (Ct. App. 1996). The term "any defense" in sub. (14) (b) does not mean all defenses available in a civil suit, but rather all defenses relating to the determination of loss sought to be compensated. Therefore, the civil statute of limitations does not apply. State v. Sweat, 208 W (2d) 409, 561 NW (2d) 695 (1997). When a defendant defrauds people, reasonable attorney fees expended to recover their losses from parties who are civilly or criminally liable may be awarded as restitution. State v. Anderson, 215 W (2d) 667, 573 NW (2d) 872 (Ct. App. 1997) That sub. (12) (a) requires issuing a single order covering all fines, assessments, costs and restitution after a restitution hearing does not authorize the court to hold open all other financial terms of a previously imposed sentence while restitution is being imposed. State v. Perry, 215 W (2d) 690, 573 NW (2d) 876 (Ct. App. 1997). A governmental entity may be a "victim" under sub. (1r) entitled to collect restitution. State v. Howard-Hastings, 218 W (2d) 152, 579 NW (2d) 290 (Ct. App. 1998). |
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