Probation and Restitution Payments

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Daniel E. Olsen

Case No.: 2017AP918-CR

Officials: LUNDSTEN, P.J.

Focus: Probation and Restitution Payments

Daniel Olsen appeals the circuit court’s order extending Olsen’s probation and increasing Olsen’s monthly restitution payment. Olsen states the issue on appeal as follows: Was it reversible error and denial of due process of law for the trial court to modify and extend Defendant Appellant Olsen’s probation without allowing him to call witnesses and cross-examine the department [of corrections] and present evidence of his own at the probation review hearing and without an “official” pleading/request/motion to extend said probation having ever been filed with the court or served upon Defendant Appellant Olsen?

I turn to Olsen’s argument that he received inadequate notice of the request to extend his probation. I find Olsen’s notice argument difficult to understand, but it appears to be based on the assertion that the notice Olsen received was insufficiently formalized. Olsen asserts that no “‘official’ pleading/request/motion to extend” was ever filed or served. I reject Olsen’s notice argument for two reasons.

First, Olsen points to no authority that requires such formal notice for purposes of extending probation. On the contrary, the case law that Olsen cites supports the proposition that something less than formal notice is required. See Hays, 173 Wis. 2d at 447 n.2 (“It is not the form of the notice that is important ….”). Second, as I now explain, I conclude that Olsen had actual notice of the extension request far in advance of the pertinent hearing. As the State points out, the record reflects that Olsen was present at a February 6, 2017 hearing during which the department of corrections requested an extension based on “the amount of restitution still owed.” That request was not heard until March 29, 2017. The State argues that this actual notice was adequate. Olsen, for his part, has not filed a reply brief or otherwise addressed the State’s actual notice argument. I take this failure as a concession that Olsen had actual notice. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief to an argument made in responsive brief may be taken as a concession).

For the reasons above, I affirm the circuit court’s order extending Olsen’s probation for one year and increasing Olsen’s restitution payment during that one-year period to $200 per month.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.