State v. Borst

SUNDBY, J.

(dissenting). I agree that defendant Johnathon Borst should pay restitution to the numerous victims he bilked by uttering forged checks. I do not agree, however, that the trial court could "correct" Borst's judgment of conviction to require restitution, without following sec. 973.20(13), Stats. If we approve the procedure followed in this case, the state and the trial court may avoid the "nuisance" of permitting the defendant to be heard on the issue of restitution by simply entering a judgment of conviction without restitution and later "correcting" the judgment to include restitution. Plainly, this approach not only violates sec. 973.20(13), Stats., but denies a criminal defendant procedural due process. In State v. Foley, 142 Wis. 2d 331, 345-47, 417 N.W.2d 920, 927-28 (Ct. App. 1987), we reversed and remanded for further proceedings a resti*126tution order which did not consider the probationer's financial resources and future ability to pay.

Section 973.20(1), Stats., provides in part:

When imposing sentence or ordering probation for any crime, 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 the crime . . . unless the court finds substantial reason not to do so and states the reason on the record. [Emphasis added.]

This provision imposes a mandatory duty upon the trial court, as does sec. 973.20(13), which provides in part:

(a) The court, in determining whether to order restitution and the amount thereof, shall consider all of the following:
1. The amount of loss suffered by any victim as a result of the crime.
2. The financial resources of the defendant.
3. The present and future earning ability of the defendant.
4. The needs and earning ability of the defendant's dependents.
5. Any other factors which the court deems appropriate.
(c) The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. The court shall give the defendant the opportunity ... to present evidence and arguments on the factors specified in par. (a). ... [Emphasis added.]

Section 973.20(14) provides:

*127At any hearing under sub. (13), all of the following apply:
(d) All parties interested in the matter shall have an opportunity to be heard, personally or through counsel, to present evidence and to cross-examine witnesses called by other parties. . . . [Emphasis added.]

At the sentencing hearing, the trial court reviewed Borst's plea questionnaire with him. Borst stated in the plea questionnaire that his understanding of the plea agreement was as follows:

8.1 have entered into ... a plea agreement. My understanding of the plea agreement is that[:] plea into four counts of forgery — 3 year prison [term] on all counts to run concurrent — with credit for time served from October 16, 1992 [,] and the three year prison term is to run concurrent with misdemeanor charges pending in Sawyer and Winnebago Counties.

The plea questionnaire is silent as to restitution.

However, the trial court did not comply with sec. 973.20(13)(c), Stats., which required it to inquire of the district attorney regarding the amount of restitution, if any, that the victim(s) claims. The trial court's omission is understandable because the district attorney did not mention restitution when he stated the terms of the plea agreement on the record.

When the state moved the court to order restitution, Borst moved to be allowed to withdraw his plea. The court denied Borst's motion on the grounds that it was the intent of the state and of the court that restitution be ordered. However, the court did not give Borst the opportunity to present evidence and arguments on *128the factors specified in sec. 973.20(13)(a), as required by paragraph (c).

Borst subsequently moved the court to modify his sentence to delete the restitution requirement from the judgment. In the alternative, he requested the right to a hearing on the issue of restitution. The district attorney stated: " [I]f the defendant wants a restitution hearing on the amount of restitution, I have no problem with that. We could schedule that." However, the trial court concluded that it was not necessary to allow Borst to be heard because the amendment of the judgment to reflect restitution was simply "to correct an oversight." Whether failure to order restitution in the original judgment was only an "oversight" is not the question; the question is whether Borst is entitled to be heard on the question of restitution. Because the statutes clearly and unambiguously give him that right, I would reverse the order and remand for proceedings at which Borst may be heard on the restitution issue.1

In response to my dissent, the majority now argues that Borst waived his right to be heard on the issue of restitution when he did not "accept" the district attorney's "offer" that if Borst wanted a restitution hearing, "We could schedule that." There was nothing for Borst to accept. The trial court had to accept the district attorney's offer because only it could schedule a restitution hearing. Borst had already insisted that he had a right to be heard on the issue of restitution. Further, the trial court failed to comply with sec. 973.20(13)(c), Stats., which provides in part: "The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims." (Emphasis added.) The trial court failed to comply with this mandatory requirement. Borst did not waive his right to be heard.