COURT OF APPEALS DECISION DATED AND FILED September 1, 2009 Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
¶1 FINE, J.
¶2 Wisconsin Stat. §
973.20(7) provides, as material: “If
more than one defendant is ordered to make [restitution] payments to the same
person, the court may apportion liability between the defendants or specify
joint and several liability.” Statutes
are presumed to be constitutional and a party contending otherwise must show
that beyond a reasonable doubt. Aicher ex rel. LaBarge v. Wisconsin
Patients Comp. Fund,
2000 WI 98, ¶¶18–19, 237
¶3 Although Wisconsin case law recognizes that, as Wis. Stat. § 973.20(7) permits, sentencing courts may impose joint and several liability for restitution, see State v. Madlock, 230 Wis. 2d 324, 336, 602 N.W.2d 104, 110 (Ct. App. 1999) (“If damage results from a criminal episode in which the defendant’s conduct played only a small and isolated part, the defendant is nonetheless properly held to pay restitution on a joint and several basis.”), Thomas argues that joint-and-several liability unfairly puts the amount he will have to pay, at least initially, in the hands of his co-actor, and, without specifying a distinction between the federal and Wisconsin constitutions, argues that this deprives him of due process. We disagree.
¶4 First, he acknowledges that he could be fairly asked to pay
all of the $2521.30. Second, as the
State points out, and as Judge Gieringer recognized in denying Thomas’s motion
for postconviction relief, if Thomas pays more than what he believes is his
fair share of the $2521.30, he can seek contribution from his co-actor. See McGee v. Bates, 2005 WI App 19, ¶6, 278
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4
[1] The
judgment convicting
[2]
[3] Thomas
asserts that restitution can not only implicate the United States
Constitution’s Eighth-Amendment prohibition against the imposition of excess
fines, citing State v. Izzolena, 609 N.W.2d 541 (IA 2000), but also has a
“punishment” component under Wisconsin law. Izzolena upheld
application of an Iowa statute that directed sentencing courts “[i]n all criminal
cases in which the offender is convicted of a felony in which the act or acts
committed by the offender caused the death of another person” to impose at
least $150,000 “in restitution to the victim’s estate” over and above money
designed to compensate the “victim for pecuniary damages.”