State v. Mark M. Loutsch, 2003 WI App 16, PFR filed 1/17/03; X-PFR filed 1/31/03
For Loutsch: Charles B. Vetzner
Issue/Holding:
¶20. When the trial court has the authority to order restitution for a loss, the court’s decision to order restitution in a particular amount is committed to the trial court’s discretion. Holmgren, 229 Wis. 2d at 366. However, because Loutsch is questioning whether the record in this case is sufficient to support restitution in any amount for Asp’s used sick leave, we view the question as one of law, and therefore our review is de novo. See id. at 366 (conclusions of law may underlie discretionary decisions, and we review these de novo).
¶21. We do not agree with Loutsch that Asp had to present evidence on all the points Loutsch raises in order to meet the victim’s burden under Wis. Stat. § 973.20(14)(a). A restitution hearing is not the equivalent of a civil trial and does not require strict adherence to the rules of evidence and burden of proof. Holmgren, 229 Wis. 2d at 367. We conclude the evidence Asp did present was sufficient for the trial court to decide it was reasonably probable that Asp would suffer a pecuniary loss in the future as a result of using his sick leave, and sufficient to provide a reasonable basis for determining the probable amount of the loss. Loutsch had the opportunity, through cross-examination of Asp, to present evidence that Asp would not need some or all of the 552 hours of sick leave to pay for health insurance upon retirement, but Loutsch did not do that. See id. at 372 (testimony that audit costs were reasonable was sufficient prima facie case to authorize imposition of those costs as restitution; burden was then on defendant to show that portions were inappropriate).
