State ex rel. Ortiz v. Carr, Appeal No. 2020AP1394

CourtCourt of Appeals of Wisconsin
Writing for the CourtFITZPATRICK, J.
Citation401 Wis.2d 450,973 N.W.2d 786,2022 WI App 16
Parties STATE of Wisconsin EX REL. Victor ORTIZ, Jr., Petitioner-Respondent, v. Kevin A. CARR, Respondent-Appellant.
Docket NumberAppeal No. 2020AP1394
Decision Date17 March 2022

401 Wis.2d 450
973 N.W.2d 786
2022 WI App 16

STATE of Wisconsin EX REL. Victor ORTIZ, Jr., Petitioner-Respondent,
v.
Kevin A. CARR, Respondent-Appellant.

Appeal No. 2020AP1394

Court of Appeals of Wisconsin.

Submitted on Briefs: April 8, 2021
Opinion Filed: March 17, 2022


On behalf of the respondent-appellant, the cause was submitted on the briefs of Steven C. Kilpatrick, assistant attorney general, and Joshua L. Kaul, attorney general.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Jason D. Luczak and Jorge R. Fragoso of Gimbel, Reilly, Guerin & Brown, L.L.P.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

FITZPATRICK, J.

401 Wis.2d 454

¶1 The judgment of conviction (the "JOC") for a criminal case in which Victor Ortiz was sentenced to prison states in pertinent part: "Court ordered restitution to be paid from 25% of prison wages."1 The Secretary of the Wisconsin Department of Corrections (the "Department") dismissed

401 Wis.2d 455

Ortiz's inmate complaint, which argued that the Department violated the restitution order in the JOC when the Department deducted for payment of restitution 50% of Ortiz's prison wages and 50% of gifted funds deposited in Ortiz's prison account. Ortiz petitioned the Dane County Circuit Court for a writ of certiorari regarding the Department's decision. The circuit court reversed the Department's decision and concluded that the Department acted contrary to law when it deducted more than 25% of Ortiz's prison wages to pay his restitution obligation. The circuit court did not explicitly rule on the Department's deduction of Ortiz's gifted funds.

¶2 On appeal, the Department argues that its deductions for payment of restitution of 50% of Ortiz's prison wages and 50% of the gifted funds deposited in his

973 N.W.2d 789

prison account were not contrary to the law. The Department's argument is based on two general propositions: (1) the terms of the JOC are not contradicted by the actions of the Department because the JOC must be interpreted as requiring the Department to deduct, at a minimum, 25% of Ortiz's prison wages and, as a result, the order does not limit the Department's authority to deduct more than 25% of his wages for restitution, and the JOC does not limit the Department's authority to deduct 50% of the gifted funds deposited in Ortiz's prison account; or (2) in the alternative, the deduction of 25% of prison wages ordered in the JOC does not control because the Department has the exclusive authority to determine the percentage or amount that is deducted for the payment of restitution from Ortiz's wages and gifted funds, and the sentencing court does not have the authority to determine the

401 Wis.2d 456

percentage or amount that is to be deducted for the payment of restitution from Ortiz's wages and from gifted funds.

¶3 We conclude that the JOC requires the Department to deduct not more, and not less, than 25% from Ortiz's prison wages for the payment of restitution. We also conclude that, in these circumstances, the sentencing court has the authority to determine the percentage or amount that is to be deducted from Ortiz's prison wages to satisfy his restitution obligation, and that the Department is required to adhere to the sentencing court's order regarding deductions from Ortiz's prison wages for payment of restitution.2 It then follows that the Department does not have exclusive authority in that regard. Accordingly, we affirm the circuit court's order requiring the Department to deduct only the 25% from Ortiz's prison wages to pay his restitution obligation that was ordered by the sentencing court. However, in light of the fact that the sentencing court did not address either the use of, or limitations on the use of, funds gifted to Ortiz for payment of restitution, we reverse the circuit court's order to the extent that it prohibits the Department from deducting money from Ortiz's gifted funds for the payment of restitution.3

401 Wis.2d 457

BACKGROUND

¶4 There is no dispute as to the following material facts.

¶5 In 2010, the Milwaukee County Circuit Court (the "sentencing court") convicted Ortiz of first-degree reckless injury and armed robbery with use of force and sentenced him to confinement in state prison and extended supervision. The sentencing court also ordered Ortiz to pay $43,777 in restitution. Ortiz's original judgment of conviction did not specify a percentage of money to be deducted from Ortiz's prison wages to satisfy his restitution obligation. Nonetheless, the parties do not dispute that the sentencing court ordered at the sentencing hearing that Ortiz's restitution is to be paid from 25% of Ortiz's prison wages.

973 N.W.2d 790

¶6 In April 2016, the Department circulated a memo to all inmates stating that, at a future date, a new Department policy would go into effect and implementation of the policy would increase the rate of deduction of inmate funds for restitution, statutory surcharges, and court costs to a maximum of 50%.4 According to the Department, the policy reflects statutory amendments made by 2015 Wis. Act 355 ("Act 355"), which became effective on July 1, 2016. We discuss shortly the Department's concession that the provisions of Act 355 are not applicable in this situation.

¶7 In December 2016, at Ortiz's request, the sentencing court issued an amended JOC, in which the

401 Wis.2d 458

court states in pertinent part: "Court ordered restitution to be paid from 25% of prison wages."

¶8 Several months after entry of the JOC, the Department began deducting 50% of Ortiz's prison wages, and 50% of the gifted funds deposited in what we refer to as Ortiz's "prison account,"5 for the payment of restitution.6 Ortiz filed an inmate complaint with the institution complaint examiner arguing that the Department's deduction of 50% from both his prison wages and his gifted funds exceeded the order in the JOC that 25% of Ortiz's prison wages be deducted for restitution. Ortiz also argued that the Act 355 amendments did not apply to him because he was convicted and sentenced before those amendments were enacted.

¶9 The institution complaint examiner recommended that Ortiz's complaint be dismissed because, according to the examiner, the Department had the

401 Wis.2d 459

authority to enforce the 50% deduction rates for each category of funds pursuant to its statutory authority both before and after the effective date of Act 355. The prison warden accepted the complaint examiner's recommendation and dismissed Ortiz's complaint. Ortiz appealed that decision to the Department Secretary who also accepted the examiner's recommendation and dismissed the appeal.7

¶10 Proceeding pro se, Ortiz petitioned for certiorari review in the circuit court. In a written ruling, the circuit court reversed the decision of the Department and concluded that the sentencing court had the

973 N.W.2d 791

authority to select the rate at which money would be deducted from Ortiz's prison wages and that the Department was required to adhere to the terms of the JOC.8 The Department appeals.

¶11 We mention other material facts in the following discussion.

DISCUSSION

¶12 Before proceeding to the main portion of our analysis, we pause to make two points about the

401 Wis.2d 460

potential applicability of Act 355 to the issues in this appeal. As relevant to this appeal, Act 355 amended WIS. STAT. § 301.32(1) (2008-09) and created WIS. STAT. § 973.20(11)(c), a new statutory subpart.9 Section 973.20(11)(c) now requires that the sentencing court order the defendant "to authorize the department to collect, from the defendant's wages and from other moneys held in the defendant's prisoner's account, an amount or a percentage the department determines is reasonable for payment to victims." See 2015 Wis. Act 355, § 15. Additionally, Act 355 added the phrase "victim restitution under s. 973.20(11)(c)" as one of the purposes under § 301.32(1) for which the Department may use money that has been delivered to a prisoner's account. See 2015 Wis. Act 355, § 6.

¶13 First, Ortiz argues that the provisions of Act 355 do not apply to him because he was sentenced—and the sentencing court made the order regarding the deduction from his prison wages for payment of restitution—before the provisions of Act 355 became effective. For its part, the Department concedes that those provisions are not applicable to this case. That is, the Department states that WIS. STAT. § 973.20(11)(c) "is irrelevant" and "makes no difference," and that "the Secretary ... did not retroactively apply Act 355 [ § 973.20(11)(c) ] to Ortiz."

¶14 As a result, we do not rely on Act 355's amendment to WIS. STAT. §...

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1 practice notes
  • State v. Green, 2020AP298-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • May 13, 2022
    ...the State's interest in bringing a defendant to trial and achieving timely justice on behalf of the victims. Majority op., ¶¶31, 35. 973 N.W.2d 786 These are of course strong interests. However, in the name of these interests the majority tramples a defendant's constitutional rights rooted ......
1 cases
  • State v. Green, 2020AP298-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • May 13, 2022
    ...the State's interest in bringing a defendant to trial and achieving timely justice on behalf of the victims. Majority op., ¶¶31, 35. 973 N.W.2d 786 These are of course strong interests. However, in the name of these interests the majority tramples a defendant's constitutional rights rooted ......

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