State v. Schmaling
| Citation | 543 N.W.2d 555,198 Wis.2d 756 |
| Decision Date | 20 December 1995 |
| Docket Number | No. 94-3041-CR,94-3041-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Michael T. SCHMALING, Defendant-Appellant. d |
| Court | Court of Appeals of Wisconsin |
Page 555
v.
Michael T. SCHMALING, Defendant-Appellant. d
Opinion Released Dec. 20, 1995.
Opinion Filed Dec. 20, 1995.
Page 556
[198 Wis.2d 758] Appeal from a judgment and an order of the circuit court for Racine County; Dennis J. Flynn, Judge. Judgment affirmed in part, reversed in part; order reversed.
On behalf of the defendant-appellant, the cause was submitted on the briefs of Donna L. Hintze, Assistant State Public Defender.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Daniel J. O'Brien, Assistant Attorney General.
Before ANDERSON, P.J., BROWN and NETTESHEIM, JJ.
ANDERSON, Presiding Judge.
Michael T. Schmaling appeals from an order denying his motion for resentencing or, in the alternative, for a modification of his sentence. Schmaling insists that the trial court erred when it ordered him to pay restitution to Racine County for the cost of fighting a fire and cleaning up after the fire and that he pay the costs incurred by the State in retaining an accident reconstruction expert in preparation for trial. We reverse that portion of the judgment that requires Schmaling to pay restitution for the costs of fire fighting and cleanup because Racine County is not a "victim" of a crime entitled to restitution. We affirm the portion of the judgment requiring Schmaling to reimburse Racine County for the costs of an accident reconstruction expert retained for trial preparation.
Schmaling originally faced seven felony counts as the consequence of an accident on I-94 in Racine County that resulted in a semitanker leaving the highway and bursting into flames causing the death of the [198 Wis.2d 759] driver. As a result of plea negotiations, the State dismissed two counts and Schmaling entered no contest pleas to the remaining counts. The trial court imposed a total sentence of eighteen years in the Wisconsin prison system. As conditions of the sentence, the court ordered Schmaling to pay restitution, including the costs incurred by Racine County in
Page 557
fighting the fire caused by the accident and the costs incurred by Racine County in retaining an accident reconstruction expert to prepare for trial.Schmaling filed a postconviction motion pursuant to RULE 809.30(2)(h), STATS., seeking either a resentencing or a modification of his sentence. Schmaling contended that the trial court erroneously exercised its discretion when it ordered him to make restitution to Racine County for the costs of fighting and cleaning up the fire and the costs incurred in retaining an accident reconstruction expert. He argued that Racine County was not a victim of the crimes for which he was sentenced and was not entitled to restitution under § 973.20, STATS. 1 The trial court held that the costs of fighting the fire and cleanup were recoverable either because Racine County was a victim under § 973.20(1), or as special damages that Racine County could recover in a civil lawsuit under § 973.20(5)(a). The trial court [198 Wis.2d 760] also held that § 973.06(1)(c), STATS., authorized the State to recover the costs incurred in retaining an accident reconstruction expert even if there had been no trial. Schmaling appeals the trial court's denial of his motion.
Schmaling's challenges are to the trial court's authority to order him to pay restitution to Racine County. These challenges are questions of law that we review without deference to the trial court. See State v. Boffer, 158 Wis.2d 655, 658, 462 N.W.2d 906, 907 (Ct.App.1990).
Restitution in criminal cases is governed by § 973.20, STATS., which imposes a mandatory duty on the sentencing court to order restitution to the victim of a crime or to the victim's estate if the victim is deceased. 2 The statute also requires the defendant to "[p]ay all special damages ... substantiated by evidence in the record,...
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