It’s
a MADD world
Court:
Statutes do not require finding of ability to pay on extended supervision
By
David Ziemer
david.ziemer@wislawjournal.com
June
25, 2007
| What
the court held Case:
State v. Richard G. Galvan, No. 2006AP2052-CR. Issue:
Must a court make an ability-to-pay finding before requiring a defendant to pay
a contribution surcharge as a condition of extended release? Holding:
No. While an
ability-to-pay finding must be made if the payment is ordered pursuant to sec.
973.06, the extended supervision statute, sec. 973.01, contains no such requirement. Attorneys:
For Appellant:
LaZotte, Paul G., Madison; For Respondent: Nieskes, Michael E., Racine; Sanders,
Michael C., Madison Looking
at the Law The
relevant statutes are the following: -
Section 973.01(5) — authorizing a trial court to impose conditions of extended
supervision, and requiring the court to advise a defendant that a violation of
such conditions may result in the person being returned to prison. -
Section 302.113(7m)(a) and (e)1 — permitting an inmate to petition the sentencing
court within one year of scheduled release to extended supervision to modify any
condition of such supervision. -
Section 973.06(1) — authorizing a trial court to tax costs, fees and contribution
surcharges against a defendant, but requiring the court to determine that the
defendant has the ability to pay. -
Section 973.09(1x) —- authorizing a trial court to impose a contribution
surcharge to an organization such as MADD as a condition of probation, but requiring
the court to determine that the defendant has the ability to pay. |
A judge
need not determine a defendant’s ability to pay before ordering him to make
contribution surcharge payments to a politically active nonprofit organization,
as a condition of extended supervised release.
While
statutes require a finding of ability to pay, before a court may make such payments
a condition of probation, or include them as part of the costs of the action,
the extended supervision statute contains no such requirement, the Wiscon-sin
Court of Appeals found on June 20.
In
the case, Richard G. Galvan was convicted of homicide by intoxicated use of a
vehicle, and sentenced to 11 years of initial confinement and four years of extended
supervision.
One
of the conditions of extended supervision required Galvan to make four annual
$1,000 contributions to Mothers Against Drunk Driving (MADD), beginning six months
after his release to extended supervision.
Racine
County Circuit Court Judge Dennis J. Barry denied Galvan’s motion contesting
the contribution to MADD without first assessing his financial ability to make
the payments, pursuant to sec. 973.06(1)(f)1, and Galvan appealed.
The
court of appeals affirmed in a decision by Judge Neal Nettesheim.
While
the statutes expressly require an ability-to-pay determination before a contribution
can be compelled either as a condition of probation, or as a part of the costs,
there is no such requirement if it is ordered as a condition of extended supervision.
The
court rejected Galvan’s argument that sec. 973.06 curtails the discretion
conferred by sec. 973.01(5).
The
court found that, although contained in the same chapter, the two statutes serve
different purposes — conditions of extended supervision under sec. 973.01(5)
are part of the total sentence, while a contribution surcharge under sec. 973.06
is a financial obligation that is not itself a sentence or a component of a sentence.
As
a result, the court concluded that there is no linkage between the two.
The
court defended its interpretation as giving effect to the language of the statutes.
The
court wrote, “As Wis. Stat. sec. 973.06(1)(f)1. and sec. 973.09(1x)(a) demonstrate,
when the legislature has intended that a sentencing court must make an ability-to-pay
determination, it has said so. We do not think it our place to insert a similar
requirement in the extended supervision statute.”
The
court also found that superimposing an ability-to-pay requirement onto sec. 973.01(5)
would obligate the court to speculate about the defendant’s earning potential
and property status many years into the future.
The court
wrote, “The trial court here found it ‘very significant’ that the
condition to make the contribution to MADD becomes effective only after Galvan
serves his eleven-year prison term because it gave Galvan over a decade to obtain
job skills, enhance his education, increase his earning capacity, and address
any drug or alcohol problems. The court also noted the possibility that a person
could inherit a sum of money in the interim. We endorse these comments.”
Finally,
the court noted that Galvan is not without a remedy, because sec. 302.113 permits
him to petition the court to modify the condition within a year of his release
to extended supervision.
Accordingly,
the court affirmed.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
