State v. Walters

• Decision Date: 25 February 1999
• Docket Number: No. 98-0828-CR,98-0828-CR
• Citation: 224 Wis.2d 897,591 N.W.2d 874
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Laura WALTERS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 874

591 N.W.2d 874

224 Wis.2d 897

STATE of Wisconsin, Plaintiff-Respondent, v. Laura WALTERS, Defendant-Appellant.

No. 98-0828-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 11, 1998.

Opinion Released Feb. 25, 1999.

Opinion Filed Feb. 25, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Todd W. Bennett of Bennett and Bennett of Portage.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jonathon G. Kaiser, assistant district attorney.

Before EICH, VERGERONT and ROGGENSACK, JJ.

ROGGENSACK, J.

Laura Walters appeals an order of the circuit court directing her to pay $24,000 in restitution to Mark Olivas for injuries he sustained as a result of an accident Walters caused by operating her automobile while intoxicated. Walters argues that Olivas is not entitled to restitution because he accepted a $25,000 payment and agreed to release all claims against her, prior to the restitution hearing. The circuit court concluded that the release in the civil case was not a defense to restitution in the criminal case, and although the court recognized that any portion of the $25,000 payment made in the civil case which was attributable to special damages should be a setoff against the total amount of Olivas's special damages, it declined to make a setoff. We conclude that a previous settlement in a civil case does not release a defendant from his or her obligation to pay restitution. We also conclude that because Olivas had suffered both special and general damages, Walters had the burden to prove what portion, if any, of the $25,000 payment was paid for Olivas's special damages. Because Walters provided no facts from which the circuit court could make that determination, we conclude the circuit court did not err in refusing to make any setoff. Therefore, we affirm the restitution order.

BACKGROUND

On August 14, 1996, Walters ran into the back of Mark Olivas's automobile, injuring him. Walters was intoxicated at the time of the accident. On October 2, 1996, Walters was charged with causing injury by intoxicated operation of a motor vehicle contrary to § 346.63(2)(a)1., STATS., and causing injury by operating a motor vehicle with a prohibited blood alcohol concentration contrary to § 346.63(2)(a)2.

On February 25, 1997, Walters's insurance company paid Olivas $25,000, the policy limits, in exchange for a release of "all claims and damages" which resulted from the accident. On April 3, 1997, Walters was convicted of causing injury by intoxicated operation of a motor vehicle contrary to § 346.63(2)(a)1., STATS. The amount of restitution was left open at the sentencing hearing.

At the restitution hearing on February 6, 1998, the court concluded that the release Olivas signed and the payment he received did not bar a restitution order in a criminal proceeding. The court then found that Olivas had incurred $40,835.17 in special damages, comprised of $9,087.52 in medical expenses and $31,747.65 in lost wages, as well as general damages of an indeterminate amount. The court also found Walters had the ability to pay $24,000 and ordered restitution in that amount, refusing to effect a setoff of the $25,000 payment Olivas had received against the restitution that it ordered. This appeal followed.

DISCUSSION

Standard of Review.

We independently determine whether the circuit court had authority to order restitution, given a particular set of facts. State v. Schmaling, 198 Wis.2d 756, 760-61, 543 N.W.2d 555, 557 (Ct.App.1995). If such an order was permissible, we review the terms of a restitution order to determine whether the circuit court erroneously exercised its discretion. State v. Behnke, 203 Restitution.

Wis.2d 43, 57, 553 N.W.2d 265, 272 (Ct.App.1996). However, when the record will permit only one conclusion in regard to how much restitution should be ordered, the decision becomes an issue of law, which we review de novo. See Singer v. Jones, 173 Wis.2d 191, 195, 496 N.W.2d 156, 158 (Ct.App.1992).

Walters argues that the release signed by Olivas in exchange for the $25,000 insurance payment was an accord and satisfaction; and therefore, a complete defense to restitution. Or in the alternative, if the release was not a complete bar to restitution, Walters contends she is entitled to a setoff of the $25,000 payment made to Olivas against any restitution the court orders. The State contends that Olivas had no claim to restitution that he could have waived because restitution in a criminal proceeding serves penal objectives of the State. Therefore, the release did not affect the circuit court's ability to order restitution, and no setoff was warranted. Neither party disputes the findings of the circuit court in regard to the amount of Olivas's special damages, the level at which Walters is able to pay restitution and that Olivas suffered general damages of an indeterminate amount, as well as special damages.

Restitution is directed by statute. Section 973.20(1r), STATS., provides in relevant part that:

the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing unless the court finds substantial reason not to do so and states the reason on the record.

Additionally § 973.20(5) sets certain parameters for what may be imposed by a restitution order. Of relevance to the arguments of the parties here is subsection (5)(a) which states:

(5) In any case, the restitution order may require that the defendant do one or more of the following:

(a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.

The statutes also establish that at a hearing to determine the amount of restitution, the defendant has the burden of proving his or her ability to pay, while the victim has the burden of proving the amount of special damages sustained. Section 973.20(14)(a) and (b). In addition, "[t]he defendant may assert any defense that he or she could raise in a civil action for the loss sought to be compensated." Section 973.20(14)(b).

The supreme court recently interpreted the "any defense" language of § 973.20(14)(b), STATS., in State v. Sweat, 208 Wis.2d 409, 561 N.W.2d 695 (1997). There, the court addressed whether § 973.20(14)(b) allows a defendant to assert the civil, rather than the criminal, statute of limitations to bar individual crime victims' claims for restitution. Sweat, 208 Wis.2d at 411-12, 561 N.W.2d at 696. Based on the placement of the phrase, "any defense," in the statute, the overall purpose of restitution, and the directive, if not mandatory, nature of ordering restitution, the court concluded that § 973.20(14)(b) does not permit a defendant to "raise, after conviction, civil defenses to liability for financial loss"; rather, the defenses relate solely to the amount of restitution that can be ordered. Sweat, 208 Wis.2d at 427, 561 N.W.2d at 702. In an effort to further explain its conclusion, the court stated that:

a defendant should be able to raise substantive defenses, such as mitigation, set-off, or accord and satisfaction, which go to the measure or amount of total restitution. However, other civil defenses available in a civil action, such as contributory negligence, lack of jurisdiction, or lack of capacity to sue or be sued simply do not make sense in a restitution hearing. Neither does the application of a civil statute of limitations in a restitution proceeding after a defendant has been convicted of a criminal offense. Both the legislative history and the goals of restitution support this result.

Id., at 424, 561 N.W.2d at 701. Based on this language, Walters claims both accord and satisfaction and setoff as defenses.

1. Accord and Satisfaction.

Accord and satisfaction is a complete defense to an action to enforce a claim. It bars further liability when an offer of performance in exchange for full satisfaction of a disputed claim is accepted and the promised performance occurs. The disputed claim may initially arise in contract, tort, or otherwise. Hoffman v. Ralston Purina Co., 86 Wis.2d 445, 453, 273 N.W.2d 214, 217 (1979). Settlements of civil claims promote the public interest of resolving disputes informally and without litigation. Tower Ins. Co., Inc. v. Carpenter, 205 Wis.2d 365, 371-72, 556 N.W.2d 384, 387 (Ct.App.1996). However, the efficient resolution of civil disputes is not the policy on which restitution in a criminal proceeding is based. Rather, restitution serves the purposes of punishment and rehabilitation of the defendant, while seeking to make the victim of criminal acts whole in regard to the special damages sustained. Sweat, 208 Wis.2d at 428-29, 561 N.W.2d at 703; § 973.20(5)(a), STATS.

The obiter dictum in Sweat mentioned accord and satisfaction as a defense that could be raised in a restitution proceeding. However, when applying that statement, we must understand the court's reasoning and the context in which the statement was made. The basic premise that drives the decision in Sweat is that restitution in criminal cases is not a claim which a defendant owns, as a civil claim is. It is a remedy that belongs to the State. ¹ Because of that difference, civil defenses which could be used as a complete bar to a subsequent civil action do not preclude a restitution order in a criminal proceeding. Therefore, while the supreme court acknowledged a restitution goal of making the victim whole in regard to special damages sustained, which goal appears to benefit the victim, the court grounded its decision on the State's penal goals that affect the defendant, such as rehabilitation, punishment and deterrence. Because a victim has no independent claim to restitution which he or she can release...