Before Brown, C.J.,
Pursuant to Wis. Stat. Rule 809.61 (2005-06)[1] this court certifies the appeal in this case to the Wisconsin Supreme Court for its review and determination.
ISSUE
In State
v. Loutsch, 2003 WI App 16, ¶25, 259 Wis. 2d 901, 656 N.W.2d 781, we held
that, when presented with evidence of a defendant’s ability to pay, the trial
court must determine the reasonable amount of restitution the defendant will be
able to pay within the term of the
sentence. Does Loutsch properly
interpret Wis. Stat. § 973.20 with respect to the setting of restitution
at sentencing?
BACKGROUND
The facts relevant to the issue we certify
are as follows.[2] Alberto Fernandez pled no contest to
operating a motor vehicle without owner’s consent contrary to Wis. Stat. § 943.23(2), and
operating while intoxicated, causing injury, contrary to Wis. Stat. § 346.63(2)(a).[3]
The charges stemmed from an incident
during which Fernandez stole a car and drove it recklessly around the Canadian
National Railroad yard, injuring a Canadian National employee. The court sentenced Fernandez to sixty days
in jail on the OWI charge, imposed a one-year license revocation, and ordered
payment of court costs and a $382 fine.
On the charge of operating a motor vehicle without consent, the court
withheld sentence and placed Fernandez on two years’ probation with a condition
that he serve fifty-seven days in the
At the subsequent restitution hearing on
January 10, 2006, the court ordered Fernandez to pay $68,794.27.[4] Fernandez’s amended judgment of conviction
orders him to pay $400 per month in restitution pursuant to Wis. Stat. § 973.20(5)(a)–(d) and
973.20(6), for a total of $9600 during the term of the sentence. The court based the monthly payment on
Fernandez’s testimony about his ability to pay.
On May 4, 2007, Fernandez filed a postconviction motion to reduce restitution. Relying on Loutsch, Fernandez argued in part that the trial court erred in ordering restitution in an amount greater than he could pay during the period of probation, or $9600. The court held a postconviction hearing on May 29, 2007, at which it denied Fernandez’s argument, holding that it could order restitution in an amount necessary to compensate the victims. The court considered the ability to pay in setting monthly payments of $400 during probation and held that the remaining amount owed would be entered in a civil judgment at the end of the term. Fernandez appeals.
DISCUSSION
Restitution is governed by Wis. Stat. § 973.20. Section 973.20(1r) provides in relevant part
that when imposing sentence or ordering probation for any crime, the court
shall order the defendant to make full or partial restitution to any victim of
a crime considered at sentencing, unless the court finds substantial reason not
to do so and states the reason on the record.
In deciding whether to order restitution or the amount of restitution, the court must consider: (1) the amount of loss suffered by any victim, (2) the financial resources of the defendant, (3) the present and future earning capacity of the defendant, (4) the needs and earning abilities of the defendant’s dependents, and (5) any other factors the court deems appropriate. Wis. Stat. § 973.20(13)(a).
Pursuant to Wis. Stat. § 973.20(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.”
On appeal, Fernandez again relies on Loutsch
in support of his contention that the trial court could order only $9600 in
restitution, the amount it determined he could pay during the term of his
sentence. In Loutsch, we held that
“when a defendant presents evidence of his ability to pay, the trial court is
not authorized to defer adjusting the amount of restitution based on ability to
pay; rather, the court must make a determination of the reasonable amount of
restitution the defendant will be able to pay within the term of the
sentence.” Loustch, 259
In deciding Loutsch, we did not agree
that Wis. Stat. § 973.20(1r),
allowing restitution to be reduced to a judgment at the end of the sentence,
indicated an intent to permit a restitution order in an amount that would
exceed what the defendant had the ability to pay during the term of the
sentence. Rather, we concluded that it
allows a victim to collect only the unpaid balance of the restitution that was
to be paid during the term of the sentence.
Loutsch, 259
The State argues that Loutsch is limited to
whether a circuit court may defer adjusting the amount of restitution based on
a defendant’s ability to pay in the future when the defendant has provided
evidence on ability to pay. See id., ¶2. Fernandez contends that our interpretation of
the restitution statute in Loutsch was not so limited―that
the court may order only payment of the “reasonable amount of restitution the
defendant will be able to pay within the term of the sentence.” Fernandez’s reliance on Loutsch appears to be
well placed. However, we question
whether Loutsch was correctly decided given the statutory framework of Wis. Stat. § 973.20 and the
policies underlying restitution. See Cook v. Cook, 208
Loutsch
holds that Wis. Stat. § 973.20(1r),
(10), and (13), when read together, “plainly contemplate that the court order
at sentencing an amount of restitution that it determines the defendant will be
able to pay before the completion of the sentence.” Loutsch, 259
In facing the application of Loutsch
here, we have doubts about this statutory interpretation and the barrier it
presents to the courts in achieving the primary purpose of restitution, which
is to compensate victims and make them whole.
Contrary to our holding in Loutsch, we see nothing in the statutory framework of Wis. Stat. § 973.20 which prohibits the circuit court from ordering an amount of restitution necessary to fully compensate a victim even if the defendant will not be able to pay the entire amount during the term of his or her sentence. Subsection (13)(a) provides for the court’s consideration of certain factors when setting restitution including the loss suffered by any victim and the defendant’s ability to pay; subsec. (10) allows for the order of installment payments during the term of the sentence; and subsec. (1r) allows any unpaid portion after the term of the sentence to be converted to a civil judgment. The State contends this is exactly what occurred in the setting of Fernandez’s restitution.
We also question Loutsch’s principal
rationale for its holding: if
restitution can be ordered in an amount which exceeds the term of the sentence,
full restitution would be ordered in every case regardless of ability to
pay―rendering the statute’s authorization for ordering partial
restitution meaningless. See Loutsch, 259
In short, we believe that Wis. Stat. § 973.20 is ambiguous
as to whether a circuit court may order restitution in an amount necessary to
compensate the victim by ordering a civilly enforceable payment, based on
ability to pay, in addition to payments the defendant is able to make during
the term of his or her sentence.
Therefore, we may look to the legislative history and other extrinsic
sources to ascertain legislative intent.
State v. Hufford, 186
The policy goals underlying restitution were
recently discussed by the supreme court in Huml v. Vlazny, 2006 WI 87, 293
In addressing whether the parties’ civil
settlement agreement encompassed the restitution order which had been converted
to a civil judgment, the Huml court observed that “[a]n
overview of Wis. Stat. §§ 973.09
and 973.20 reveals that a fundamental policy of these statutes is to make
victims whole without allowing them to receive double recoveries.” Indeed, this court has consistently
recognized that § 973.20(1r) creates a presumption that restitution will
be ordered in criminal cases and that the restitution statute should be
interpreted broadly and liberally in order to allow victims to recover their
losses as a result of a defendant’s criminal conduct. See,
e.g., State v. Johnson, 2002 WI App 166, ¶16, 256
We note that this court previously questioned
the continued viability of Loutsch in State v. Anthony D., 2006
WI App 218, ¶7 n.2, 296 Wis. 2d 771, 723 N.W.2d 775. There, we observed that Loutsch may no longer be
the law in light of the supreme court’s decision in Huml, 2006 WI 87, 293
Wis. 2d 169. While the supreme court in Huml
did not address the issue presented here,[8]
it passed over without comment a restitution order which, by its own terms,
would exceed the term of probation.
Pursuant to the restitution order, the defendant would pay restitution
in a stipulated amount of $140,000 with monthly payments of $425 over three
years of probation.[9]
CONCLUSION
Wisconsin
Stat. § 973.20 imposes a mandatory duty on courts to provide for
restitution at sentencing. State
v. Borst, 181
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] The facts underlying the issue we certify are straightforward and undisputed. However, the defendant raises additional issues pertaining to the amounts of restitution and the timing of the restitution claims. All of the facts relevant to those issues have not been presented.
[3] Pursuant to the plea agreement, a charge of first-degree reckless endangerment was dismissed but read in at sentencing.
[4] This
amount reflects $3175.67 to the vehicle owner’s insurer; $250 to the vehicle
owner to reimburse her deductible; $20,560 to the injured employee for lost
wages; and $44,808.60 to Canadian National, including $25,200 for wage advances, $18,473.02 for
medical bills, and $1135.58 for rehabilitation management. Canadian National is a “self-insured”
company.
We note that the hearings as to restitution were postponed twice at the defendant’s request to allow him to adequately consider the claims.
[5] We also note that Wis. Stat. § 973.20(13)(a)3. requires the court to consider “[t]he present and future earning ability of the defendant.” (Emphasis added.) The consideration of future earnings seems to weigh in favor of the trial court’s ability to order a restitution amount in addition to that which defendant is able to pay during the term of the sentence, as long as the total amount is cabined by consideration of the ability to pay and the other statutory factors.
[6] While
the facts in Huml v. Vlazny, 2006 WI 87, 293
[7] We
note that the supreme court in Huggett v. State, 83
[8] The issue in Huml, 293 Wis. 2d 169, ¶12, was “[w]hether a written settlement agreement and release discharging a defendant from civil liability for all past, present and future claims arising out of his or her criminal conduct precludes the crime victim from enforcing a subsequent judgment for unpaid restitution entered after the defendant has been released from probation.”
[9] Initially
the circuit court ordered restitution of $500,000, but subsequently amended the
restitution order pursuant to Wis. Stat.
§ 973.20(13)(c), based on the parties’ stipulation. Huml, 293
[10] However,
the supreme court noted that the defendant’s probation had twice been extended
due to sporadic restitution payments. Huml v. Vlazny, 293