State v. Pope
| Decision Date | 25 May 1982 |
| Docket Number | No. 81-1585-CR,81-1585-CR |
| Citation | 107 Wis.2d 726,321 N.W.2d 359 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Brenda POPE, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Bronson C. La Follette, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen., for plaintiff-respondent.
Before FOLEY, P. J., and DEAN and CANE, JJ.
Brenda Pope appeals from an order amending the amount of restitution set as a condition of her probation from $278 to $4,000. The trial court sentenced Pope to three years in prison on a robbery conviction, but stayed that sentence and placed her on probation for two years with the condition that she pay $278 in restitution for the victim's emergency treatment, X-ray and medical expenses. A subsequent hearing was held on the state's motion to increase the amount of restitution to $5,346 because of additional financial losses to the victim. After this hearing, the trial court amended the amount of restitution ordered as a condition of probation to $4,000.
Pope does not challenge the authority of the court to increase the amount of restitution, but argues that at a hearing to determine restitution as a condition of probation, the rules of evidence and civil standard of proof must be applied. She further argues that the trial court abused its sentencing discretion by not considering her financial resources and future ability to pay when it amended the restitution from $278 to $4,000. Although the trial court employed the proper procedure and burden of proof, we conclude that the trial court failed to exercise its discretion because it did not consider her financial resources and future ability to pay. We reverse.
Pope contends that the rules of evidence and the civil burden of proof must be adhered to in a hearing to establish restitution. In support of her argument, Pope relies on sec. 973.09(8), Stats., which defines pecuniary loss as special damages, supported by evidence in the record, which could be recovered in a civil action. 1
The language of sec. 973.09, Stats., demonstrates that the restitution hearing is not intended to be an adversary civil trial. 2
The statute does not require that a certain evidentiary standard be employed or that the equivalent of a civil trial be held. The hearing is to establish the amount of damages which can be the basis for restitution, not a trial to establish civil liability.
Granting probation and establishing conditions of probation are part of the criminal sentencing process and are designed to rehabilitate the offender and protect the public's interests. A restitution hearing in a criminal proceeding is analogous to a presentence investigation. State v. Scherr, 9 Wis.2d 418, 426, 101 N.W.2d 77, 81 (1960). Section 911.01(4)(c), Stats., specifically states that the rules of evidence do not apply to sentencing probation. It follows, therefore, that a restitution hearing by statute is not a civil action requiring adherence to the strict rules of evidence and burden of proof.
This is consistent with the general approach toward sentencing hearings. The trial court is given wide latitude to gather information for sentencing purposes without being bound by the traditional rules of evidence. Roberts v. United States, 445 U.S. 552, 556, 100 S.Ct. 1358, 1362, 63 L.Ed.2d 622 (1980); United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2615, 57 L.Ed.2d 582 (1978). The trial court should be and is allowed similar latitude in determining the proper amount of restitution.
Pope also argues that due process requires the rules of evidence and civil burden of proof be utilized in establishing restitution. When discussing the analogous situation of a probation hearing, the Wisconsin Supreme Court has stated that the hearing need not be a formal, trial-type hearing and the technical rules of evidence need not be followed. State v. Gerard, 57 Wis.2d 611, 618, 205 N.W.2d 374, 378 (1973). Due process requires a factual hearing to determine the grounds of revocation and that the defendant be informed of his probation violations, be able to confront his adversary, and be heard if he wishes. Id. at 617, 205 N.W.2d at 378. The same reasoning must apply to a restitution hearing. The state must afford notice of the hearing with an opportunity to confront the victim's claim for pecuniary loss and also an opportunity to be heard. Due process does not require that the rules of evidence and civil burden of proof apply to a restitution hearing. Pope was given notice of the hearing, had an opportunity to confront her adversary, cross-examine adverse witnesses, and introduce her own evidence. We conclude that Pope's restitution hearing complied with due process.
Pope's argument that damages were not adequately proved because of hearsay or insufficient foundation must also fail. At the restitution hearing, the robbery victim testified about the value of his wrecked car, the cost of certain repairs, the value of some jewelry, and the amount of medical bills. No contradictory evidence was introduced. Pope simply claims that, since some of the victim's testimony was based on purchase price, not current market value, it was irrelevant. The trial court, in exercising its discretion, may accept or reject testimony as reliable or unreliable. Id. at 618, 205 N.W.2d at 378. Given the victim's uncontradicted evidence on the value of the individual items of loss, we cannot say that the trial court's finding of approximately $5,700 of losses is unreasonable or without sufficient basis.
Pope also argues that, in amending the amount of restitution from $278 to $4,000, the trial court abused its sentencing discretion by not considering her ability to pay. Section 973.09(1m), Stats., requires a trial court to consider the financial resources and future ability of the probationer to pay when establishing the amount of restitution and method of payment. The Wisconsin Supreme Court has emphasized the importance of considering the probationer's ability to pay when setting restitution. Huggett v. State, 83 Wis.2d 790, 800, 266 N.W.2d 403, 407 (1978).
A sentence will be modified or remanded only when an abuse of discretion is clear. McCleary v. State, 49 Wis.2d 263, 278, 182 N.W.2d 512, 520 (1971). A sentence will not always be set aside where a trial court has abused its discretion by failing to...
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