April 7, 2022 – State law did not authorize the Department of Corrections (DOC) to deduct 50% of an inmate’s wages to pay restitution because a judgment of conviction (JOC) specified that 25% of the inmate’s wages were to go toward restitution.
State ex rel Ortiz v. Carr, 2020AP1394 (March 17, 2022) the Court of Appeals District IV held that the terms of the JOC regarding the deduction amount were not ambiguous and that the DOC was bound by those terms.
Court Orders 25% Deduction; DOC Doubles It
In 2010, the Milwaukee County Circuit Court convicted Victor Ortiz, Jr. of first-degree reckless injury and armed robbery with use of force and sentenced him to prison and extended supervision.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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The court also ordered Ortiz to pay restitution in the amount of $43,777.
A second judgment of conviction issued by the circuit court in December 2016 at Ortiz’s request specified “Court ordered restitution to be paid from 25% of prison wages.”
In 2017, the Department of Corrections (DOC) began deducting 50% of Ortiz’s wages and 50% of funds deposited by gift into his prison account to pay the restitution.
Ortiz filed a complaint with the prison complaint examiner. He argued that both deductions violated the JOC issued in 2016.
The examiner concluded that DOC had the authority to deduct 50% of Ortiz’s wages and gifts and recommended that the complaint be dismissed. The prison warden then dismissed Ortiz’s complaint.
Ortiz appealed to the DOC secretary; she dismissed the appeal. Ortiz appealed to the Dane County Circuit Court pro se. The Dane County Circuit Court reversed the secretary.
DOC Argues Exclusive Authority
DOC argued that it had the exclusive authority to choose what percentage to deduct from Ortiz’s account for restitution.
Ortiz argued that the second JOC required exactly 25% to be deducted from his wages for restitution.
He also argued that DOC was authorized to deduct from his account only those amounts that were specified in the second JOC. Because that JOC said nothing about deductions from gift deposits, Ortiz argued, DOC was not authorized to deduct anything from those funds.
JOC Did Not Set Minimum
The appellate panel rejected DOC’s argument that the second JOC established only a minimum amount that could be deducted from Ortiz’s wages, because it would add words to the JOC and change its meaning.
“We will not alter language chosen by the sentencing court by reading additional words into the JOC,” Judge Fitzpatrick wrote.
The appellate panel also rejected DOC’s argument that the word “from” in the second JOC limited the source of restitution funds but not their amount.
“The Department gives no viable explanation why the sentencing court’s order regarding Ortiz’s restitution payments should be understood as applying solely to the source of money used for those restitution payments, but not the quantity of money from that source,” Judge Fitzpatrick wrote.
JOC Authorized by Statute
Judge Fitzpatrick explained that
Wis. Stat. section 973.20(10)(a) authorizes a circuit court to establish the exact amounts to be deducted from an inmate’s account for restitution.
The 25% deduction specified in the second JOC was a “specified installment” as that term is used in section 973.20(10)(a), Judge Fitzpatrick wrote, based on both the dictionary meaning of the word “installment” and
State v. Fernandez, 316 Wis. 2d 598, 764 N.W.2d 509.
Fernandez, the court of appeals held that a requirement to pay $400 a month in restitution counted as a “specified installment.”
“Similar to the monthly payments described in
Fernandez, the sentencing court ordered Ortiz to make periodic partial payments towards his restitution obligation rather than requiring Ortiz to pay the entire amount,” Judge Fitzpatrick wrote. “The definition of the phrase ‘specified installments includes ‘a set dollar amount paid at set intervals …
“We conclude that the definition also necessarily encompasses periodic partial payments whose precise numerical amount may vary from payment to payment based on a specified percentage,” Judge Fitzpatrick wrote. “The Department does not give a cogent argument otherwise.”
Statues Don’t Grant DOC Authority
DOC argued that three statutes –
Wis. Stat. sections 301.32(1),
303.01(8)(b) – gave it the exclusive authority to determine the rate of money deducted from an inmate’s wages to pay restitution.
The appellate panel disagreed. Section 301.32(1) does nothing more than outline DOC’s general authority to control the money in inmates’ accounts, Judge Fitzpatrick explained.
Section 301.31. authorizes DOC to pay inmates “moderate wages” and authorizes DOC to use the wages to pay obligations reduced to judgment either in full or “ratably.” But the statute does not authorize DOC to set the rate or percentage, Judge Fitzpatrick wrote.
And the authority granted DOC to distribute an inmate’s wages for restitution granted by section 303.01(8)(b) “depends on an order from the sentencing court requiring the defendant to pay restitution under Wis. Stat. section 973.20,” Judge Fitzpatrick wrote.
The law requires DOC to abide by the 25% deduction for restitution specified in the second JOC, Judge Fitzpatrick explained.
Deduction from Gifts Was Legal
The appellate panel held that DOC did have the authority to deduct 50% of the gift funds deposited in Ortiz’s inmate account.
The JOC said nothing about deductions from gifts deposited into Ortiz’s account, Judge Fitzpatrick explained.
Furthermore, Judge Fitzpatrick explained that under section 301.32(1), DOC has general authority to use money deposited in an inmate’s account for his or her benefit, and he noted that the court of appeals has held that DOC may use non-wages deposited into an inmate account to pay restitution because paying restitution benefits the inmate.