PUBLISHED OPINION
Case No.: 95-2135-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GILBERT RODRIGUEZ,
Defendant-Appellant.
Submitted on Briefs: September 3, 1996
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: October 23, 1996
Opinion Filed: October
23, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Racine
(If
"Special", JUDGE: EMMANUEL VUVUNAS
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the brief of Patrick K. Cafferty of Hanson,
Gasiorkiewicz & Weber, S.C. of Racine.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Sharon
Ruhly, assistant attorney general.
|
COURT OF
APPEALS DECISION DATED AND RELEASED OCTOBER
23, 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. 95-2135-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
GILBERT
RODRIGUEZ,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Racine County: EMMANUEL VUVUNAS, Judge. Affirmed and cause remanded.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
ANDERSON,
P.J. Gilbert Rodriguez was convicted on his no
contest plea of hit and run in an accident causing death in violation of §
346.67, Stats. The trial court sentenced him to prison and
ordered him to pay restitution with the “determination on payment to be
determined by Agent.” Although the appeal on its face was taken from a judgment
of conviction and had the look of a final order, the issue before us proves to
be nonfinal. We therefore construe
Rodriguez’s notice of appeal as a petition for leave to appeal, and we grant
the petition as to the issue of causation only.
On
appeal, Rodriguez contends that he is not liable for restitution because his
only “criminal act,” fleeing the scene of a fatal accident, was not a cause of
the death of the victim. We affirm the
court’s decision to order restitution.
Section 973.20(1), Stats.,[1]
permits the sentencing court to order restitution upon a defendant’s conviction
of a crime without regard to whether there is a casual link between a specific
element of the crime and the victim’s damages.
There are other issues regarding the restitution order which were not
raised in this appeal. Accordingly, we
remand to the trial court to allow for their resolution.
On
June 17, 1993, at approximately 8:30 p.m., the victim, Casey B., and his
companion, were going to another friend’s home on their bicycles. The two were riding eastbound on Kinzie
Avenue, with the companion riding on the sidewalk and Casey B. riding in the
middle of the road. At the intersection
of West Boulevard, Casey B. rode his bicycle into the westbound lane of traffic
and was swerving from side to side, playing “chicken” with traffic.
According
to witnesses, a Cadillac struck Casey B., at which point Casey B. began to
slide toward the westbound traffic and was struck a second time by a Lincoln
Continental which was following the Cadillac.
The Lincoln swerved and rear ended the Cadillac. The Lincoln then fled from the accident
scene at a high rate of speed. Casey B.
was later pronounced dead from massive head injuries as a result of the
accident.
The
next day Rodriguez turned himself in, admitted to driving the Lincoln and to
being involved in the accident.
Rodriguez left the scene because he did not have a valid driver’s
license, he had pending citations for operating after revocation and he was on
probation for drug dealing. He denied
striking Casey B., but stated that “if [he had hit the bicyclist], it was a
fraction of a second before he hit the Cadillac.” However, both paint and clothing fibers taken from Casey B.
matched paint samples removed from the headlight and fibers removed from the
lower left license plate of the Lincoln driven by Rodriguez. As a result, a complaint was filed to which
Rodriguez pled no contest to hit and run causing death in violation of §§
346.67(1) and 346.74(5)(d), Stats.
At
sentencing, Rodriguez argued that restitution was inappropriate because there
was no causal link between the offense committed, the death of Casey B. and the
resulting damages. The trial court
disagreed and sentenced him to eighteen months in the Wisconsin prison
system. The trial court also found that
“there is no doubt that [Rodriguez] hit [Casey B.], that his car came in
contact. That he was a cause, not maybe
the primary cause, but he certainly could be considered to be a cause of what’s
happened,” and ordered restitution to the family. Rodriguez appeals the order for restitution.
On
appeal, Rodriguez argues that his criminal acts— fleeing the scene of a fatal
accident—were not the cause of Casey B.’s death or the cause of the expenses
incurred by the family. He asserts that
before restitution may be ordered, there must be a “showing that the
defendant’s criminal acts caused the victim’s injuries for which he is seeking restitution”
and no such showing was made here.
Finally, even if the restitution order stands, he claims there is no
statutory basis for requiring him to pay for items awarded to Casey B.’s
family.
Rodriguez’s
arguments require us to construe § 973.20, Stats., and apply the statute to the facts of this case. The construction of a statute or statutes,
or the application of the same to a particular set of facts, is a question of
law which appellate courts decide without deference to the trial court’s determination. See State v. Sostre,
198 Wis.2d 409, 414, 542 N.W.2d 774, 776 (1996). In construing the statute, we first look to the language of the
statute. If it is not ambiguous, then
we are not permitted to use interpretation and construction techniques because
the words of the statute must be given their obvious and ordinary meaning. See Town of Seymour v. City of
Eau Claire, 112 Wis.2d 313, 319, 332 N.W.2d 821, 823-24 (Ct. App.
1983).
We
first consider Rodriguez’s argument that his criminal acts were not the cause
of the victim’s death, and likewise were not the cause of the expenses incurred
by the family. He maintains that the restitution award was unjustified because
the State never established that the cause of the injuries for which
restitution was awarded was specific to his criminal conduct, more precisely,
fleeing the scene. We are
unconvinced. Rodriguez bases his
argument on a faulty premise that if the elements of the crime of which he was
convicted were scrutinized, his only prohibited act was his actual flight from
the scene of the fatal accident.
At
sentencing, restitution may be ordered once a defendant has been convicted of
any crime. Section 973.20, Stats.
A crime is defined as “conduct which is prohibited by
state law and punishable by fine or imprisonment or both.” Section 939.12, Stats. (emphasis added).
Under the restitution statute, the sentencing court takes a defendant’s
entire course of conduct into consideration.
The restitution statute does not empower the court to break down the
defendant’s conduct into its constituent parts and ascertain whether one or
more parts were a cause of the victim’s damages.[2]
The
crime Rodriguez was convicted of, upon his plea of no contest, has six
elements:
(1) defendant operated a motor vehicle involved
in an accident;
(2) the accident resulted in injury to any
person or other vehicle;
(3) defendant knew that the vehicle he was
operating was involved in an accident;
(4) defendant did not remain at the scene of the
accident until he had
(a) given his name, address, and the
registration number of the vehicle he was driving to the person struck or
operator of or person attending any vehicle collided with; and
(b) rendered to any person injured in such
accident reasonable assistance including the carrying of such person to a
physician, surgeon, or hospital for medical or surgical treatment if it is
apparent that such treatment is necessary or is requested by the injured
person;
(5) defendant was physically capable of
complying with the requirements;
(6) the accident involved the death of a person.
See Wis J I—Criminal 2670 (1994);[3];
see also State v. Lloyd, 104 Wis.2d 49, 59, 310 N.W.2d 617, 623
(Ct. App. 1981).
Rodriguez
pled no contest to the crime charged. A
no contest plea constitutes an admission by the defendant of his or her past
criminal conduct and consents to entry of a criminal judgment conviction
without a trial. See County of
Racine v. Smith, 122 Wis.2d 431, 437, 362 N.W.2d 439, 442 (Ct. App.
1984). Thus, Rodriguez’s plea is an
admission that the totality of his criminal conduct, including fleeing the
scene, resulted in C.D.B’s death and relieves the State of its burden to
prove all of the elements of Rodriguez’s criminal conduct beyond a reasonable
doubt. See State v. Sartin,
200 Wis.2d 47, 53, 546 N.W.2d 449, 451-52 (1996).
The
crime of which Rodriguez stands convicted is not “leaving the scene of an
accident,” but hit and run in an accident resulting in death. Rodriguez pled no contest and in doing so
admitted to all of the elements of the crime, not just to “leaving the scene of
an accident.” It is undisputed that
this is but one element of the “crime” for which Rodriguez was convicted. Leaving the scene of an accident is just as
much an element of the offense as operating a vehicle involved in an accident,
failing to give a name and address, or failing to render assistance. The fact that leaving the scene of the
accident, in itself, may not “result” in death is really not relevant to
whether restitution is permissible. The
prohibited conduct consisted of operating a vehicle which was involved in an
accident and then leaving the scene of the accident before performing specific
statutory duties. Although one element
on its own may not constitute a crime, when all of these elements are proven or
admitted, then a crime has been committed and restitution may be ordered.
Turning
to Rodriguez’s final argument regarding the items awarded as restitution to the
family, the State contends that he failed to contest these items before the
trial court and he must therefore “raise his alternative argument by a motion
in the trial court seeking modification of the restitution order.” We disagree.
At
sentencing, Casey B.’s father spoke and requested “roughly $10,000” for the
expenses incurred due to the hit and run death of his son. The court replied, “Okay. Because—what you’re asking for is certainly
appropriate. What we need is an
itemization.” Casey B.’s father
explained that they had “given receipts and everything” to the Victim Witness
agency. The State offered to obtain
that information for the court.
Rodriguez then made his causation argument to the court. The court rejected this argument and ordered
restitution to the family “in whatever sum is presented to the Court,
and I will order that the determination and how it be paid be made by
[Rodriguez’s] parole officer.”
(Emphasis added.) The State
fails to explain and we fail to understand, how Rodriguez could appropriately
contest a restitution order which has not yet been determined or argued.
Based
upon our review of the record, we find only one substantive ruling by the trial
court so far in this case—that a defendant is responsible for restitution when
his or her criminal acts cause harm to the victim, even when the acts of others
contributed to the victim’s harm as well.
We affirm this ruling.
However,
the remaining issues raised on appeal have not been addressed by the trial
court because the restitution process is not yet completed. While the trial court may have ordered
restitution, it did not fix the amount or indicate which items were allowable
and which were not. Why not? The answer is simple: these arguments were not made by either
party, the court requested more information, the State promised to provide that
information and the Department of Corrections had not determined restitution as
of the sentencing hearing.
The
restitution statutes direct the proper course in such a situation. Section 973.20(13)(c), Stats., requires the court to include
an amount of restitution in the sentencing order if restitution is
determined before sentencing and is stipulated to by the defendant or can
be fairly heard at the sentencing proceeding.
That, however, did not occur in this case. Rather, the question of restitution was deferred until the court
received the additional information it needed.
This
course of action is also permitted by the restitution statute. However, § 973.20(13)(c), Stats., requires a postsentence
restitution hearing unless the defendant stipulates to the restitution. At that hearing, the burden is on the person
claiming restitution. Section
973.20(14)(a).[4] Accordingly, Casey B.’s family must prove
they have standing to claim restitution and they must show that the items they
claim are recognized by law. Rodriguez
need only offer evidence concerning his ability to pay restitution. Section 973.20(14)(b). If restitution is ordered, then the
restitution must be incorporated into the sentence or probation order. Section 973.20(13)(c).
We
conclude that the issue of the actual amount of restitution was not before the
trial court at sentencing. According to
the record before this court, the details of the restitution order were
reserved for another day. It is evident
from the sentencing transcript that Rodriguez did not, nor could he, contest or
stipulate to a restitution order which was still to be determined. The record contains nothing pertaining to
the trial court’s ultimate decision regarding restitution. When the court of appeals is not provided
with the trial court’s decision, it limits the scope of its appellate review to
the record before it. Nielsen v.
Waukesha County Bd. of Supervisors, 178 Wis.2d 498, 523, 504 N.W.2d
621, 631 (Ct. App. 1993). Accordingly,
we remand to the trial court and leave resolution of the issue of an award of
restitution to another day.
By
the Court.—Judgment affirmed
and cause remanded.
[1] Section
973.20(1), Stats., has been
amended and renumbered § 973.20(1r) by 1995-96 Wis. Act 141 § 2. The changes do not affect our analysis. All statutory references are to the 1993-94
statutes.
[2] “Elements of a
crime” are defined by Black's Law
Dictionary 520 (6th ed. 1990), as “[t]hose constituent parts of a crime
which must be proved by the prosecution to sustain a conviction.”