Olson v. Kaprelian

• Decision Date: 10 April 1996
• Docket Number: No. 95-2322,95-2322
• Parties: In re Restitution in State v. William Olson. William OLSON, Appellant, v. Sidney KAPRELIAN, Respondent.
• Court: Wisconsin Court of Appeals

Page 712

550 N.W.2d 712

202 Wis.2d 377

In re Restitution in State v. William Olson.

William OLSON, Appellant, v. Sidney KAPRELIAN, Respondent.

No. 95-2322.

Court of Appeals of Wisconsin.

Submitted on Briefs March 25, 1996.

Opinion Released April 10, 1996.

Opinion Filed April 10, 1996.

On behalf of the appellant, the cause was submitted on the briefs of Terry W. Rose of Rose & Rose of Kenosha.

On behalf of the respondent, the cause was submitted on the briefs of Alice A. Nejedlo of Hanson, Gasiorkiewicz & Weber, S.C. of Racine.

Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.

BROWN, Judge.

This case primarily concerns how trial courts may enforce outstanding criminal restitution orders. William Olson, who was convicted of a criminal assault, claims that the trial court could not make him forfeit restitution directly from a bond he had posted in a separate criminal matter. We agree and thus reverse the trial court's order which directed the clerk to pay the victim, Sidney Kaprelian, directly from Olson's bond. However, we reject Olson's further argument that his civil settlement with Kaprelian encompassed the damages within the restitution award and therefore precludes Kaprelian from seeking enforcement of the restitution order in some other manner.

The controversy began with a fight between Olson and Kaprelian that started after a party in December 1991. As a result, Olson faced criminal assault and property damage charges in Kenosha county and Kaprelian faced a criminal damage to property claim in Racine county.

Olson pled no contest to his charges in June 1992. The Kenosha trial court imposed a fine and jail sentence and also ordered him to pay Kaprelian $937.64 in restitution.

The Racine trial court convicted Kaprelian on his charges in September 1993. The court ordered him to pay Olson $150 as restitution. The Racine trial court then credited Olson with this amount. Thus, after both parties had faced their respective criminal charges, Olson owed $787.64 to Kaprelian.

In January 1993, Kaprelian brought a civil action against Olson for damages arising out of the December 1991 assault. Olson responded with several counterclaims, including one for the damage that Kaprelian did to his property that same December.

The parties subsequently agreed to settle these civil claims and dismiss the case. The agreement provided:

That the Complaint of [Kaprelian], and each of the causes of action contained therein, whether pleaded or not, may be dismissed upon the merits, with prejudice, without costs and without further notice.

In March 1994, Kaprelian incorporated the agreement into an order and it was approved by the Racine trial court. ¹

Over a year passed. Then in June 1995, Kaprelian filed an order to show cause with the Kenosha trial court seeking to enforce the original restitution award of $787.64 against Olson. That previous March, Olson had posted a $2500 cash bond with the Kenosha courts for criminal charges in an unrelated matter. Kaprelian thus asked the trial court to simply assign him the money directly out of Olson's bond.

After a hearing, the trial court issued the following order:

IT IS HEREBY ORDERED THAT, at the conclusion of Kenosha County Case Number 95-CF-154, the Clerk of Courts for Kenosha County shall pay directly to Sidney Kaprelian the sum of $787.64 from any funds remaining from the bond posted by William Olson in that matter. The purpose of this order is to enforce compliance by William Olson with the terms of the judgment in the above captioned matter as regards restitution ordered by this Court.

The court rejected Olson's argument that the civil settlement from March 1994 precluded Kaprelian from trying to enforce this outstanding restitution order.

On appeal, Olson reargues his defense. But before addressing it, we must first examine the validity of the actual order requiring Olson to forfeit a portion of his bond. We raise this question sua sponte in recognition of our duty to resolve any doubts involving subject matter jurisdiction. ² See Achtor v. Pewaukee Lake Sanitary Dist., 88 Wis.2d 658, 664, 277 N.W.2d 778, 781 (1979). An issue involving the scope of the trial court's power is a question of law which we review independently. See State ex rel. Larsen v. Larsen, 165 Wis.2d 679, 682-83, 478 N.W.2d 18, 19 (1992).

In regards to this jurisdictional question, Olson challenges how the trial court chose to enforce its earlier restitution order. He concedes that the restitution provisions, specifically § 973.20(1), STATS., amended, 1995 Wis.Act 141, § 2, ³ allow a crime victim to enforce an outstanding award through either the civil judgment process outlined in ch. 815, STATS., or the civil contempt process set out in ch. 785, STATS. Nonetheless, he argues that a trial court has no jurisdiction to simply issue an order that assigns funds directly from a bond to the crime victim.

We agree and thus hold that the trial court's order is void as a matter of law. A trial court does not have authority to use a criminal bond to satisfy a restitution award. State v. Cetnarowski, 166 Wis.2d 700, 710, 480 N.W.2d 790, 793 (Ct.App.1992). There, the defendant argued that the bond he posted could not be reduced by restitution awards imposed as part of his sentence. Id. at 703, 480 N.W.2d at 790. We examined the bail statutes and concluded that they intentionally excluded restitution awards as expenses which could be applied to the defendant's bond. See id. at 710, 480 N.W.2d at 793. The trial court's order is therefore void because it violates the rule in Cetnarowski that bonds may not be used to satisfy unpaid restitution.

We now turn to Olson's original argument that Kaprelian is forever precluded from enforcing this award. This issue remains before us because our conclusion that the order attempting to enforce the restitution award is void does not answer whether Kaprelian may try to enforce it in some other manner.

Olson's argument goes as follows. Pointing to the civil settlement agreement, he contends that he believed that "he was settling the restitution issue." Olson argues, in essence, that he was trading his right to bring civil claims in exchange for Kaprelian's agreement to dismiss his civil case and to waive his claim to the restitution award. ⁴ While Olson describes in his briefs how "collateral estoppel" applies to bar Kaprelian, we need not address this doctrine because the restitution statutes contain a special...