RESTITUTION HEARING BRIEF

TABLE OF CONTENTS

1. Caption
2. Statement of the Case
3. Applicable Restitution Statute
4. Victim Information and Claimed Losses
5. Disputed Restitution Amount
6. Defense Arguments Against Claimed Restitution
7. Proposed Alternative Restitution
8. Defendant's Ability to Pay
9. Proposed Payment Plan
10. Legal Authority and Case Law
11. Certificate of Service

Caption

STATE OF WISCONSIN
CIRCUIT COURT
[________________________________] COUNTY

Statement of the Case

On [__/__/____], the Defendant, [DEFENDANT FULL NAME], was convicted of [CHARGE(S)] in violation of Wis. Stat. § [________________________________]. The conviction arose from events occurring on or about [__/__/____] in [COUNTY NAME] County, Wisconsin.

The Defendant entered a plea of [GUILTY / NO CONTEST / WAS FOUND GUILTY AT TRIAL] on [__/__/____]. The State has requested restitution in the amount of $[________________________________]. This brief is submitted in advance of the restitution hearing scheduled for [__/__/____].

Applicable Restitution Statute

Wisconsin restitution is governed by Wis. Stat. § 973.20:

• Mandatory Restitution: When imposing sentence or ordering probation, the court shall order the defendant to make full restitution to any victim of a crime considered at sentencing, unless the court finds substantial reason not to do so and states its reasons on the record.
• Scope of Restitution: Includes:
• Damage to or loss of property (replacement value at the time of loss)
• Bodily injury costs (medical, dental, chiropractic, hospital, funeral, ambulance)
• Lost income by the victim
• Cost of counseling for the victim
• Cost of repairing or replacing property
• Income lost by the victim's family
• Ability to Pay Not a Bar: The defendant's ability to pay is not a factor in determining whether to order restitution or the amount.
• Hearing Right: The court may schedule a hearing on the issue of restitution; the victim's failure to request restitution does not relieve the court of its obligation.
• Read-In Offenses: Restitution may be ordered for offenses read in at sentencing.
• Enforcement: Restitution orders are enforceable as civil judgments.

Under Wis. Const. Art. I, § 9m, crime victims have the constitutional right to restitution.

Victim Information and Claimed Losses

Victim 1: [________________________________]

Disputed Restitution Amount

The Defendant disputes the claimed restitution for the following reasons:

☐ The claimed losses are not compensable under Wis. Stat. § 973.20
☐ The losses are not causally connected to the criminal conduct
☐ Insufficient documentation supports the claimed amount
☐ The victim has been compensated by insurance or other sources
☐ The claimed amount includes losses from offenses not read in or considered at sentencing
☐ Other: [________________________________]

Defendant's Position on Restitution Amount: $[________________________________]

Defense Arguments Against Claimed Restitution

A. Compensable Losses Under § 973.20

[________________________________]

B. Causal Connection

[________________________________]

C. Documentation Deficiencies

[________________________________]

D. Insurance and Third-Party Offsets

[________________________________]

E. Substantial Reason Not to Order Full Restitution

[________________________________]

Proposed Alternative Restitution

Proposed Total Restitution: $[________________________________]

Defendant's Ability to Pay

Current Employment: [________________________________]
Monthly Gross Income: $[________________________________]
Monthly Net Income: $[________________________________]

Monthly Obligations:

Monthly Disposable Income: $[________________________________]

Proposed Payment Plan

• Total Restitution Amount: $[________________________________]
• Initial Payment (if any): $[________________________________]
• Monthly Payment Amount: $[________________________________]
• Payment Start Date: [__/__/____]
• Estimated Completion Date: [__/__/____]

Legal Authority and Case Law

1. Wis. Stat. § 973.20 -- Mandatory full restitution; ability to pay not a factor in setting amount; substantial reason required to decline.

2. State v. Canady, 2000 WI App 87, 234 Wis. 2d 261, 610 N.W.2d 147 -- Restitution must be supported by evidence and directly tied to the criminal conduct.

3. State v. Johnson, 2002 WI App 166, 256 Wis. 2d 871, 649 N.W.2d 284 -- The court must make findings on the record supporting the restitution amount.

4. State v. Walters, 2004 WI 18, 269 Wis. 2d 142, 675 N.W.2d 778 -- The defendant's inability to pay does not affect the amount of restitution ordered.

5. Wis. Stat. § 973.20(13)(c) -- Restitution orders are enforceable in the same manner as civil judgments under Chapter 816.

Certificate of Service

I hereby certify that on [__/__/____], a true and correct copy of this Restitution Hearing Brief was served upon:

[DISTRICT ATTORNEY NAME]
[COUNTY] County District Attorney's Office
[ADDRESS LINE 1]
[CITY], Wisconsin [ZIP CODE]

☐ Personal Delivery
☐ U.S. Mail, postage prepaid
☐ Electronic Filing / Service

_________________________________________
[ATTORNEY NAME], Attorney for Defendant
[SBN]
[FIRM NAME]
[ADDRESS LINE 1]
[CITY], Wisconsin [ZIP CODE]
[PHONE NUMBER]
[EMAIL ADDRESS]

WISCONSIN STATE NOTES

• Mandatory Full Restitution: The court must order full restitution unless it finds "substantial reason" not to and states reasons on the record.
• Ability to Pay Irrelevant to Amount: The defendant's financial resources do not affect the restitution amount, only the payment schedule.
• Broad Scope: Includes not only victim losses but also income lost by the victim's family.
• Read-In Offenses: Restitution may be ordered for offenses read in at sentencing.
• Insurance Subrogation: If expenses have been paid by an insurer, restitution is payable to the insurer.
• Constitutional Right: Wis. Const. Art. I, § 9m ("Marsy's Law") provides victims the constitutional right to restitution.
• Civil Enforcement: Restitution orders are enforceable as civil judgments under Chapter 816.
• DA Obligation: The district attorney must obtain and present pertinent restitution information under § 973.20(13)(a).