In State v. Perry, 181 Wis. 2d 43, 510 N.W.2d 722 (Wis. Ct. App. 1993), the defendant was charged with aggravated battery arising from an incident in which he inflicted cutting wounds on the victim with a knife during a fight.
A friend of his also was charged in relation to the same incident and was tried separately. The defendant was convicted and sentenced and began serving time before his co-defendant's trial was completed.
The trial court decided that, because both men were charged with crimes causing the victim's injuries, it would be fair and efficient to determine the issue of restitution at a joint proceeding with the co-defendant, if he were convicted.
The co-defendant then was convicted, and the court held a restitution hearing and ordered the defendant to pay restitution.
The defendant appealed, arguing that the trial court had violated the restitution statutes and his double jeopardy rights when it ordered him to pay restitution after he already had been sentenced.
The Wisconsin restitution statute permitted a trial court to "'adjourn a sentencing proceeding for up to 60 days pending resolution of the amount of restitution.'" 510 N.W.2d at 725 (quoting the relevant statute).
The trial court's award of restitution was made outside that 60-day period, but the appellate court held, for reasons not relevant to our analysis, that the time period was directory, not mandatory, and the trial court had compelling reasons to delay the restitution hearing until after the co-defendant's trial.
The appellate court rejected the defendant's argument that the award of restitution violated his "constitutional protection against double jeopardy," opining:
The defendant himself points out that Wisconsin courts in fact are allowed to increase or add restitution after the initial disposition. The law of double jeopardy largely conforms to the applicable statutory framework, but this is because the protection is keyed to the convicted offender's expectations about the finality of the punishment meted out. See United States v. DiFrancesco, 449 U.S. 117, 136-37, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980). The defendant knew at the conclusion of the September 1992 sentencing hearing that the restitution determination proceedings were very likely to follow; he had no legitimate expectation that he would escape the restitution order. Therefore, his restitution determination proceedings did not offend any finality expectations. 510 N.W.2d at 727.