PUBLISHED OPINION
Case No.: 95-2322
Complete Title
of Case:
In re Restitution in
STATE v. WILLIAM OLSON:
WILLIAM OLSON,
Appellant,
v.
SIDNEY KAPRELIAN,
Respondent.
Submitted on Briefs: March 25, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: April 10, 1996
Opinion Filed: April 10, 1996
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If "Special", JUDGE: Michael S. Fisher
so indicate)
JUDGES: Anderson,
P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the appellant, the cause was submitted on the briefs of Terry W.
Rose of Rose & Rose of Kenosha.
Respondent
ATTORNEYSOn
behalf of the respondent, the cause was submitted on the briefs of Alice A.
Nejedlo of Hanson, Gasiorkiewicz & Weber, S.C. of Racine.
|
COURT OF APPEALS DECISION DATED AND RELEASED April 10, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2322
STATE
OF WISCONSIN IN COURT OF
APPEALS
In re Restitution in
STATE v. WILLIAM OLSON:
WILLIAM OLSON,
Appellant,
v.
SIDNEY KAPRELIAN,
Respondent.
APPEAL from an order of
the circuit court for Kenosha County:
MICHAEL S. FISHER, Judge. Reversed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. This case primarily
concerns how trial courts may enforce outstanding criminal restitution
orders. William Olson, who was
convicted of a criminal assault, claims that the trial court could not make him
forfeit restitution directly from a bond he had posted in a separate criminal
matter. We agree and thus reverse the
trial court's order which directed the clerk to pay the victim, Sidney
Kaprelian, directly from Olson's bond.
However, we reject Olson's further argument that his civil settlement
with Kaprelian encompassed the damages within the restitution award and
therefore precludes Kaprelian from seeking enforcement of the restitution order
in some other manner.
The controversy began
with a fight between Olson and Kaprelian that started after a party in December
1991. As a result, Olson faced criminal
assault and property damage charges in Kenosha county and Kaprelian faced a
criminal damage to property claim in Racine county.
Olson pled no contest to
his charges in June 1992. The Kenosha
trial court imposed a fine and jail sentence and also ordered him to pay
Kaprelian $937.64 in restitution.
The Racine trial court
convicted Kaprelian on his charges in September 1993. The court ordered him to pay Olson $150 as restitution. The
Racine trial court then credited Olson with this amount. Thus, after both parties had faced their
respective criminal charges, Olson owed $787.64 to Kaprelian.
In January 1993,
Kaprelian brought a civil action against Olson for damages arising out of the
December 1991 assault. Olson responded
with several counterclaims, including one for the damage that Kaprelian did to
his property that same December.
The parties subsequently
agreed to settle these civil claims and dismiss the case. The agreement provided:
That the Complaint of [Kaprelian], and
each of the causes of action contained therein, whether pleaded or not, may be
dismissed upon the merits, with prejudice, without costs and without further
notice.
In
March 1994, Kaprelian incorporated the agreement into an order and it was
approved by the Racine trial court.[1]
Over a year passed. Then in June 1995, Kaprelian filed an order
to show cause with the Kenosha trial court seeking to enforce the original
restitution award of $787.64 against Olson.
That previous March, Olson had posted a $2500 cash bond with the Kenosha
courts for criminal charges in an unrelated matter. Kaprelian thus asked the trial court to simply assign him the
money directly out of Olson's bond.
After a hearing, the
trial court issued the following order:
IT IS HEREBY ORDERED THAT, at the
conclusion of Kenosha County Case Number 95-CF-154, the Clerk of Courts for
Kenosha County shall pay directly to Sidney Kaprelian the sum of $787.64 from
any funds remaining from the bond posted by William Olson in that matter. The purpose of this order is to enforce
compliance by William Olson with the terms of the judgment in the above
captioned matter as regards restitution ordered by this Court.
The
court rejected Olson's argument that the civil settlement from March 1994
precluded Kaprelian from trying to enforce this outstanding restitution order.
On appeal, Olson
reargues his defense. But before
addressing it, we must first examine the validity of the actual order requiring
Olson to forfeit a portion of his bond.
We raise this question sua sponte in recognition of our duty to resolve
any doubts involving subject matter jurisdiction.[2] See Achtor v. Pewaukee Lake Sanitary
Dist., 88 Wis.2d 658, 664, 277 N.W.2d 778, 781 (1979). An issue involving the scope of the trial court's
power is a question of law which we review independently. See State ex rel. Larsen v. Larsen,
165 Wis.2d 679, 682-83, 478 N.W.2d 18, 19 (1992).
In regards to this
jurisdictional question, Olson challenges how the trial court chose to enforce
its earlier restitution order. He
concedes that the restitution provisions, specifically § 973.20(1), Stats., amended, 1995 Wis. Act
141, § 2,[3] allow a
crime victim to enforce an outstanding award through either the civil judgment
process outlined in ch. 815, Stats.,
or the civil contempt process set out in ch. 785, Stats. Nonetheless,
he argues that a trial court has no jurisdiction to simply issue an order that
assigns funds directly from a bond to the crime victim.
We agree and thus hold
that the trial court's order is void as a matter of law. A trial court does not have authority to use
a criminal bond to satisfy a restitution award. State v. Cetnarowski, 166 Wis.2d 700, 710, 480
N.W.2d 790, 793 (Ct. App. 1992). There,
the defendant argued that the bond he posted could not be reduced by
restitution awards imposed as part of his sentence. Id. at 703, 480 N.W.2d at 790. We examined the bail statutes and concluded
that they intentionally excluded restitution awards as expenses which could be
applied to the defendant's bond. See
id. at 710, 480 N.W.2d at 793.
The trial court's order is therefore void because it violates the rule
in Cetnarowski that bonds may not be used to satisfy unpaid
restitution.
We now turn to Olson's
original argument that Kaprelian is forever precluded from enforcing this
award. This issue remains before us
because our conclusion that the order attempting to enforce the restitution
award is void does not answer whether Kaprelian may try to enforce it in some
other manner.
Olson's argument goes as
follows. Pointing to the civil
settlement agreement, he contends that he believed that “he was settling the
restitution issue.” Olson argues, in
essence, that he was trading his right to bring civil claims in exchange for
Kaprelian's agreement to dismiss his civil case and to waive his claim to the
restitution award.[4] While Olson describes in his briefs how
“collateral estoppel” applies to bar Kaprelian, we need not address this
doctrine because the restitution statutes contain a special procedure designed
to provide the relief Olson seeks.
Whether the facts (that is, the settlement agreement) meet the statutory
requirements is a question of law which we review de novo. See Kania v. Airborne Freight Corp.,
99 Wis.2d 746, 758-59, 300 N.W.2d 63, 67-68 (1981).
The statutory section
governing restitution allows a defendant to reduce civil damages awarded to the
crime victim by amounts paid pursuant to a restitution order. See § 973.20(8), Stats.
We read this statute to likewise enable a defendant to try to reduce the
amount he or she owes because of a restitution award during settlement
negotiations on the companion civil case.
For such an agreement to be valid, however, the defendant must establish
the “validity and amount” of this “setoff” in a hearing before the trial court
conducting the civil action. Id. The statute places the burden on the
defendant to establish that the outstanding restitution order has been included
in the calculation of any civil settlement.[5]
Applying these
guidelines to this civil settlement, we conclude that Olson has failed to meet
these mandates. The civil settlement
was approved by the trial court.
However, the court approving the settlement never conducted a hearing to
test whether the restitution order was validly “set off.” See id. Indeed, the language of the settlement only refers to Kaprelian's
civil complaint. It makes no reference
to the restitution order. We thus hold
that Olson's attempt to “set off” the restitution award failed to meet the
requirements within § 973.20(8), Stats.
In conclusion, we deem
void as a matter of law the order which reduced Olson's bond by the amount of
the unsatisfied restitution award. We
reject, however, Olson's argument that his civil settlement with Kaprelian
included the outstanding restitution award and now precludes Kaprelian from
trying to enforce it in some other manner.[6]
By the Court.—Order
reversed.
[2] The parties never raised this issue before the trial court but have responded to our request for supplemental briefs.
[3] The legislature, in 1995 Wis. Act 141, renumbered and amended § 973.20(1), Stats., 1993-94, to § 973.20(1r). The amendments do not affect our analysis.
[4] This conclusion is partially based on our review of the record. For example, Olson argued to the trial court that a series of letters exchanged between counsel in early 1993 included references to the outstanding restitution that Olson still owed. Olson thus claimed that these letters provided evidence of the parties' intent to settle the restitution order and civil claims together in one agreement.
[5] Here, the victim first acquired a restitution order and then pursued a civil claim. However, the victim who first secures a civil remedy may nonetheless face a defendant who claims that any restitution award should be set off with the damages already paid in the civil judgment. See § 973.20(14)(b), Stats. (“The defendant may assert any defense that he or she could raise in a civil action for the loss sought to be compensated.”). Indeed, another panel of this court recently addressed such a scenario in State v. Sweat, No. 95-1975-CR (Wis. Ct. App. Apr. 4, 1996, ordered published, Jun. 25, 1996).