State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate
Issue/Holding:
¶52 The State counters that there is no language in the statute that requires victim claims to be submitted before sentencing. The State also argues that where restitution was held open, there is no expectation of finality and thus no equitable grounds for denying the claims.
¶53 While Wis. Stat. § 973.20(13)(c) provides the right for a defendant to dispute claims of losses, it does not set any explicit deadlines for victims’ claims. Recognizing the unique nature of the restitution process, the statute imposes only limited duties on district attorneys, requiring them to “attempt to obtain from the victim prior to sentencing information pertaining to the factor specified [as to the amount of loss suffered],” [29] and on a court, requiring the court to “inquire of the district attorney” as to any claims for restitution from any victims.
¶54 There is no language in the statute that prohibits the consideration of claims presented before the restitution hearing occurred, which is when Dalka’s and CNR’s claims were presented. Where, as here, Fernandez had notice of Dalka’s injuries (and therefore of those of his insurer, CNR) because Fernandez knew that Dalka had been hurt, there was no expectation of finality at a sentencing hearing when restitution was ordered in an amount to be determined. Even if Fernandez somehow was unaware of the injuries on the night of the crash, the complaint included information on Dalka’s being taken by ambulance to the hospital and being told by a doctor that he had torn ligaments in his left knee.
State v. Perry, 181 Wis. 2d 43, 510 N.W.2d 722 (Ct. App. 1993) (60-day timeline for adjourning sentence to consider restitution “directory” rather than mandatory), ratified, ¶56. The holding may be somewhat limited, as the following suggests, ¶58: “In light of the open-ended language of the statute and the court of appeals’ holding in Perry, there is no error at least where the claims are made before the hearing is concluded and restitution is ordered, as the claims were here.”
