01-0182 State v. Torpen

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This is so because it is improper to order restitution to a party with no relationship to the crime of conviction.

Therefore, we reverse and remand with directions that the circuit court enter an amended judgment of conviction.

“If the probation statutes alone governed this question, we perhaps would agree that the condition of probation imposed here was reasonable and appropriate. However, we conclude that it is for the legislature to expressly permit the imposition of such a condition of probation in light of the express prohibition recited in the cost statute. …

“Similarly, we conclude that Wis. Stat. sec. 973.09(1)(a) cannot authorize the circuit court to order the payment of outstanding restitution obligations from unrelated cases, even if the court characterizes the requirement as a general condition of probation, rather than as restitution ordered as a condition of probation pursuant to Wis. Stat. sec. 973.20. Although we are sensitive to the needs of victims to recover restitution, we cannot permit what the statutes do not allow.

“We conclude that the circuit court erred as a matter of law, and thus erroneously exercised its discretion, by setting forth as a condition of probation the payment of outstanding restitution obligations from unrelated cases. Accordingly, we reverse those portions of the judgment and postconviction order directing Torpen to pay restitution in his forgery and worthless check cases as a condition of probation in this case.

We remand so that the circuit court can enter an amended judgment of conviction consistent with this opinion.”

Affirmed in part, reversed in part and remanded with directions.

Recommended for publication in the official reports.

Dist III, Barron County, Brunner, J., Cane, C.J.

Attorneys:

For Appellant: William E. Schmaal, Madison

For Respondent: James C. Babler, Barron; Mary E. Burke, Madison