State appeals court OKs restitution order for more than twice the value of the damaged property

Grogan

By Gretchen Schuldt

A Fond du Lac County judge did not err when he ordered a mentally ill man with $113 in monthly disposable income to pay $5,486 in restitution for repairs to a stolen truck worth less than half that amount, the State Court of Appeals has ruled.

The 2-1 decision by the three-judge District II Court of Appeals panel upheld a ruling by Circuit Judge Robert J. Wirtz. Appellate Judge Shelley A. Grogan wrote the decision and was joined by Appellate Judge Lisa S. Neubauer. Appellate Judge Paul F. Reilly dissented.

"The only issues are whether the circuit court erroneously exercised its discretion in setting the amount of restitution or in finding (Alex Scott) Stone had the ability to pay," Grogan wrote. State law, she said, allows a judge to order restitution for "reasonable repair cost." Wirch did that, she said.

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The defendant had mental health issues and disposable income of $113 per month.

Reilly

​Reilly took issue with that analysis but outlined another basis of disagreement in a footnote. 

"It is my belief, however, that imposing a restitution order against a mentally disabled young man who could not work, who was under a...Ch. 51 (mental health) commitment order placing him in a group home with a third party handling his meager finances, who had a spinal infection, who was prone to hearing 'voices' and 'seeing things,' and who had a total of $3.75 of daily disposable income is not conducive to a defendant’s rehabilitative needs," he wrote.

He acknowledged that Stone did not produce evidence that he had to use some of his $113 per month for transportation, medical costs, or other human needs and so did not meet his burden of proof that he did not have the ability to pay the restitution. 

Stone, who died while the appeal was pending, took the 1997 Chevy truck, which had 220,000 miles on it, from his friend Matt, who had taken it from the victim, identified in court records only as M.S., according to a brief filed in the case.

Stone damaged the truck and was arrested after an officer saw sparks coming from the passenger side wheel. Stone, who at first was found incompetent to stand trial, eventually was convicted of operating a motor vehicle without the owner's consent.

At the restitution hearing, M.S. did not present information about the value of the truck, but did offer an estimate to repair it: $5,486.37. Stone's lawyer presented Kelley's Blue Book information indicating that showed the truck, in very good condition, would be worth $2,394 in a private-party sale.

The following exchange took place during the hearing, according to a defense brief.

The state: If your – do you intend to repair the vehicle?

M.S.: I’m probably just going to replace it.

The state: Why is that?

M.S.: Well, I can’t just go out and replace a pickup truck for twenty-three hundred, if that’s what they’re talking about, you know.

The state: Would your preference be to repair the vehicle so that you can use it again, all things being equal?

M.S.: I think there was way too much damage done to it to warrant sticking that in that vehicle. I would want to replace it. I have nothing to use on my farm.

The state: Okay. And the reason you would not want to repair that vehicle is you think there’s too much damage to it?

M.S.: Well, unless I stick the five thousand dollars in it to get it done correctly. 

Wirch, ordered Stone to make $5,486.37 in restitution for the repairs. He also ordered restitution for post-arrest towing costs, raising the total amount owed to $6,008.60.

"The statute's plain language does not restrict the award to the actual value of the property even when the actual value may be less than the reasonable repair cost," Grogan wrote in confirming the restitution order. "Rather, the statute allows a circuit court to choose the 'reasonable repair' option in determining the restitution amount even if the repair cost exceeds the property's value."

Grogan also rejected Stone's argument that it was illogical to order repair costs because M.S. intended to replace the truck, not repair it.

"The victim’s testimony did not eliminate repairing the pick-up truck," Grogan wrote. "The victim still had the pick-up truck, and her last statement indicated that if she received the $5,000 in restitution, she could repair it."

Grogan and Neubauer also found that Stone had the ability to pay.

He testified that his monthly income was $773 and his monthly expenses were $600 for rent in a group home and food and $60 for his cell phone. That left $113 a month in extra income. Stone also testified that the only items he bought with his disposable income were soda and cigarettes, which he said were " 'not … really necessary,' " Grogan wrote.

Stone, who did not work due to his disability, also said he might pick up a part-time job at McDonald's or "something like that" in the future, she said.

"Although $113 may strike some as a small amount of disposable income, it was extra money for Stone after all his monthly bills were paid," Grogan wrote. "Accordingly, the circuit court’s decision on ability to pay was not an erroneous exercise of discretion."

Reilly, in his dissent, rejected the idea that a repair estimate is always a proper basis for restitution. 

M.S. testified, Reilly wrote, that she would replace the truck rather than repair it because the truck wasn't worth putting a repair investment of $5,486.37.
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"The victim correctly recognizes that given the evidence produced at the restitution hearing, she should simply go out and buy a similar truck in 'good condition' at a price of $2,394...." he wrote. "By taking a piece of property worth $2,394 and increasing its value to over $5,000, the victim is made more than whole. The victim receives a windfall.

"We do not use restitution to punish a defendant, and we do not use restitution to enrich a victim," he said. "We use restitution to return the victim to the position he or she was in before being victimized."

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