Remand is remedy for late restitution order.

Byline: David Ziemer

Even though a sentencing court erred in leaving restitution to be determined by the Department of Corrections without time limits, the proper remedy is vacation of the order and remand for determination of restitution, not elimination of all restitution, the Wisconsin Court of Appeals held on Mar. 5.

Standard Operating Procedure

On Dec. 2, 1997, Jeffrey Kenneth Krohn pleaded no contest in Milwaukee County Circuit Court to three counts of burglary. Additional counts of burglary, forgery, and theft by fraud were dismissed but read-in for purposes of sentencing and restitution.

At sentencing, Krohn agreed that he should pay restitution on all counts, stating, "All I can do is pay back the money to the people, you know, on the property." Krohn was sentenced by Judge Michael J. Barron to prison on two of the counts, and given a stayed prison sentence with probation on the third. The court also ordered that restitution was "to be determined."

On Aug. 24, 1998, Krohn's probation/parole agent submitted a restitution memorandum to the court, advising that the victims claimed $29,596.24 in restitution, and that Krohn disputed the amount. After a restitution hearing, Krohn stipulated to restitution of $24,374.10, and Judge Barron entered an order for that amount.

Manna from Heaven

Subsequently, the Wisconsin Court of Appeals decided the case of State v. Evans, 2000 WI App 178, 238 Wis.2d 411, 617 N.W.2d 220, review denied, 2001 WI 1, 239 Wis.2d 773, 621 N.W.2d 629. In Evans, as in most criminal cases at that time in Milwaukee County, when restitution was not settled at sentencing, it was left to be determined by the Department of Corrections.

Evans argued that the order violated sec. 973.20(13)(c), and due to backlog in the District I Court of Appeals, the appeal was transferred to District IV, which vacated the restitution order.

Citing Evans, Krohn moved to vacate the restitution order, arguing that, because Judge Barron failed to determine restitution within the statutory time limit after sentencing, the order was invalid.

Reality Returns

Judge Jeffrey A. Wagner denied the motion, however, as well as a subsequent motion for reconsideration. Krohn appealed, and the Court of Appeals agreed that the restitution order was invalid and must be vacated, in a decision by Judge Charles Schudson. However, the appeals court further held that the appropriate remedy included remand to the circuit court for redetermination of restitution.

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