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Wisconsin Department Of Justice Wins Major Victory For Crime Victims

 

"The criminal restitution statute is designed to make crime victims whole," Attorney General Van Hollen said. "Today's decision vindicates the rights of crime victims."

 

MADISON - In a consequential ruling positively affecting Wisconsin's crime victims, the Wisconsin Supreme Court held in State v. Fernandez that a court may award restitution in an amount that exceeds what the defendant has the ability to pay during the term of his or her sentence. The decision is significant because it overrules portions of a 2003 Wisconsin Court of Appeals decision (State v. Loutsch) which had been interpreted to limit a court's ability to award restitution based on a defendant's ability to pay the restitution during the time of the defendant's sentence (incarceration + extended supervision).

 

"As we recognize Wisconsin's crime victims this week, this decision is particularly fitting and welcome. Wisconsin's criminal restitution statute is designed to make crime victims whole," Attorney General J.B. Van Hollen said. "Today's decision vindicates the rights of crime victims." Van Hollen's office handled the case for the state on appeal.

 

The court's decision affirms a Fond du Lac County Circuit Court order that awarded full restitution for damages caused when Fernandez, intoxicated, stole a car and injured a worker in the Fond du Lac rail yard when the worker had to dive out of the path of the oncoming car and suffered injury as a result. Ultimately, Fernandez's joyride ended when he crashed the vehicle. The Court of Appeals certified the case to the Wisconsin Supreme Court to answer the question as to whether a 2002 Court of Appeals decision had correctly interpreted the criminal restitution statute.

 

"The Loutsch decision was inappropriately limiting restitution awards in a way that was not the Legislature's intent. It further prevented crime victims from being awarded what they were statutorily entitled to receive from criminal defendants." Van Hollen said. "I authorized our attorneys to continue to advocate for the law and the rights of crime victims with the hope that the Wisconsin Supreme Court would take up this issue. The Court did and today I am pleased it has vindicated the law, our legal position, and importantly, the rights of crime victims," he concluded.

 

Under the restitution statute (Wis. Stat. 973.20(13)(a)), when setting restitution, courts are directed to consider the amount of loss suffered by any victim as a result of a crime; the financial resources of the defendant; the present and future earning ability of the defendant; the needs and earning ability of the defendant's dependents; and any other factors which the court deems appropriate. Today, the supreme court made clear that awarding full restitution for a victim's loss is appropriate as long as the defendant's ability to pay is taken into consideration.

 

A copy of today's decision can be found at: http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=36312.

 

The State was represented on appeal by Assistant Attorney General Lee Pray.