State v. Heyn

*631SHIRLEY S. ABRAHAMSON, J.

(dissenting). The defendant has inflicted severe personal pain and suffering on Mrs. Gunnel. Like other victims of burglary, she feels violated, her sense of safety and security has been shattered, the privacy and sanctity of her home have been destroyed. The defendant was sentenced to prison for 10 years, followed by 12 years of probation, for several burglaries. The circuit judge ordered the defendant to pay restitution in the sum of $4,082.73 as a condition of probation to pay for the Gunnels' pecuniary losses.

The issue presented by this case is whether the circuit court's additional order, requiring the defendant to pay the Gunnels $4,000, the cost of installing a burglary alarm system, for "the pain and suffering or the burglary alarm, whichever is appropriate under law ..." is authorized by sec. 973.09, Stats. 1985-86. I conclude that it is not.

The circuit court's order to pay $4,000 has all the attributes of an order to pay restitution. Indeed the circuit court refers to the payment as restitution. Wisconsin statutes do not define the word restitution;. the ordinary meaning of restitution is to make "a restoration of something to its rightful owner ... a making good of or giving an equivalent for some injury." Webster's Seventh New Collegiate Dictionary 732 (1981). As the statute clearly states, and the majority recognizes, majority op. at 627, restitution under sec. 973.09(1)(b) does not include the cost of the burglary alarm system. Perhaps the legislature should have included it, but it did not.

The majority opinion reasons the circuit court may order payment of $4,000 as a condition of probation under sec. 973.09(l)(a) so long as it appears "reasonable and appropriate." As a result of the majority opinion, the circuit court may circumvent the restrictions on restitu*632tion.the legislature established under sec. 973.09(l)(b) by imposing restitution under sec. 973.09(l)(a). This reading of the statute is, in my opinion, inconsistent with the language of sec. 973.09 and the legislative intent and renders sec. 973.09(1)(b) governing restitution superfluous. I therefore dissent.

I am authorized to state that Chief Justice Nathan S. Heffernan joins this dissent.