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Nov. 23, 2021 – Wisconsin law does not restrict a circuit court’s award of restitution for reasonable repair cost to the value of the property.  

In State v. Stone, 2020AP1661-CR (Nov. 17, 2021), the Court of Appeals District II interpreted Wis. Stat. section 973.20(2)(b) to hold that a restitution award for reasonable repair cost is tied to repair costs, not the actual value of the property.

Joy Ride Sidelined Farm Truck  

In January 2017, Alex S. ​Stone drove a pickup truck owned by M.S. without her permission in Fond du Lac County. He damaged the truck while driving it before being pulled over and arrested for OWI.

M.S. requested restitution; she submitted a repair estimate of $5,486.37 and a towing bill for $522.23. During a restitution hearing held in October 2019, M.S. said she paid the towing bill but hadn’t repaired the truck because the body shop wouldn’t perform any repairs until she paid the estimate.

When she was cross examined by Stone’s lawyer, M.S. said she hadn’t looked at the Kelley Blue Book (KBB) to determine the truck’s value. Stone’s lawyer showed M.S. a KBB printout that listed the truck’s private-party value on the date of the hearing as $2,934.

On re-direct, M.S. said the truck was too damaged to spend $2,300 on repairing it. She had no vehicle to use on her farm, M.S. said. She wanted to replace the truck, she said, and couldn’t repair it unless she spent $5,000 on it.

When Stone testified, he said he had been committed under Wis. Stat. chapter 51 and was living in a group home. He received $773 a month in social security for a disability. He paid $600 a month to live and eat in the home and $60 for his cell phone. Stone said that left him $113 a month for cigarettes and soft drinks.

The circuit court determined that the repair estimate was fair and represented the reasonable value of the repair. The court also determined that M.S. was entitled to restitution for the towing bill.

The court ordered $6,008.60 to M.S. in restitution, found that Stone was able to pay the restitution, and conditioned Stone’s parole upon payment of the restitution.

Circuit Court’s Discretion Was Proper

In an opinion written by Judge Lisa Neubauer, a three-judge panel affirmed the circuit court’s restitution award by a 2-1 vote.

Section 973.20(2)(b) allows a circuit court to choose from three amounts when ordering restitution: reasonable repair cost; reasonable replacement cost; or the value of the property on the date it was damaged, lost, or destroyed or the value of the property on the date of sentencing, whichever is greater.

The appellate panel’s majority held that the only time the value of the property becomes an issue in ordering restitution is when the circuit court selects the third option.

“When a circuit court selections option (1), the statute’s plain language does not restrict the award to the actual value of the property even when the actual value may be less than the reasonable repair cost,” Neubauer wrote. “Rather, the statute allows a circuit court to choose the ‘reasonable repair’ option in determining the restitution amount even if the repair costs exceeds the property’s value.”

Stone argued that the trial judge misinterpreted the statute by awarding M.S. the greater repair costs instead of the lesser value of the truck. But that argument misreads the statute, Neubauer explained

“Section 973.20(2)(b) provides a circuit court with discretion to choose between the three enumerated options and only when selecting option (3) is the circuit court required to select the ‘greater’ of the two stated values,” Judge Neubauer wrote.

“The circuit court here, in its discretion, certainly could have opted to base restitution on option (3), and if it had done so, then it would have been bound by the greater and value language. However, the circuit court did not elect to base restitution on the value option, but instead selected the reasonable repair option.”

Stone also argued the circuit court’s decision was erroneous because M.S. intended to replace the truck rather than repair it. But Neubauer said that argument was based on a misreading of M.S.’s testimony.

“The victim’s testimony did not eliminate repairing the pick-up truck. The victim still had the pick-up truck, and her last statement indicated that if she received the $5,000 in restitution, she could repair it.”

Moreover, the Wisconsin Court of Appeals held in 1994 that a circuit court has the discretion to award restitution for repairs costs in an amount that exceeds the value of the property.

Dissent: Evidence of Loss is Crucial

Judge Paul F. Reilly dissented. He reasoned that the plain language of section 973.20(2)(b) “requires a circuit court to choose an amount ‘reasonab[ly] necessary to return victims of crime to the position they were in before they were victimized.”

“The victim, contrary to both the circuit court and the Majority, understands it is not reasonable to ‘stick[]’ $5,486.37 into a piece of property that is worth $2,934,” Reilly wrote. “While it would cost $5,486.37 to repair it back to its ‘good’ condition, you would still be left with a truck worth only $2,934.”

The court of appeals decision relied upon by the majority for the proposition that restitution for repair costs may exceed the value of the property was distinguishable, Reilly wrote.

“The victims put forth evidence that they had purchased a car in order to restore it and they had put in over two hundred hours of labor towards restoring the car at the time it was stolen. While the fair market value of the shell of the car was between $1,000 and $1,200, the court found that awarding that amount would deprive the victims of the fruits of their labor and the loss of the future opportunity to complete the restoration.”

There were no such facts in Stone’s case, Reilly wrote.

“We do not use restitution to punish a defendant, and we do not use restitution to enrich a victim. We use restitution to return the victim to the position he or she was in before being victimized.”