Background
In August 2018, Xavier Fleming pleaded guilty to one count of felony murder as a party to the crime. At his December 2018 sentencing in Dane County, the circuit court sentenced him to 15 years of initial confinement and 10 years of extended supervision. The court gave the State 30 days to submit a proposed restitution order — a deadline the State never met.
More than five and a half years later, in June 2024, the State moved for leave to submit an untimely restitution order seeking approximately $2,554.88 to reimburse the Crime Victim Compensation Program for funeral expenses it had paid to the victim’s family. Fleming objected, arguing the delay was unjustified and prejudicial. The circuit court disagreed and entered the restitution order. Fleming appealed.
The Court’s Holding
The Court of Appeals reversed, applying the two-factor balancing test from State v. Ziegler, 280 Wis. 2d 860 (Ct. App. 2005), which requires courts to weigh the length and reasons for the delay against any injury, harm, or prejudice to the defendant. On the first factor, the court found it straightforward: the State conceded it had no specific explanation for the five-and-a-half-year delay, establishing that no valid reason existed.
On the prejudice factor, the court held that Fleming had a legitimate expectation of finality in his sentence — specifically, that he would not be required to pay restitution. Applying the multi-factor analysis from State v. Jones, 257 Wis. 2d 163 (Ct. App. 2002), the court noted that Fleming had served over one-third of his confinement, his direct appeal had been resolved more than three years prior, he had no role in causing the delay, and neither the State, the court, nor the victim’s family had communicated to him during those years that restitution was still being pursued.
The court rejected the State’s argument that prejudice was diminished because the delay did not hinder either side’s ability to substantiate or challenge the restitution claim. Under Ziegler, the relevant prejudice inquiry focuses on the defendant’s legitimate expectation of finality, not solely on evidentiary harm. With both factors weighing against the State, the circuit court lacked authority to grant the untimely restitution request.
Key Takeaways
- Wisconsin’s statutory 90-day timeframes for setting restitution amounts under Wis. Stat. § 973.20(13)(c) are directory, not mandatory, but untimely restitution orders will be upheld only if the Ziegler two-factor balancing test is satisfied.
- A five-and-a-half-year unexplained delay, combined with no ongoing communication to the defendant that restitution remained pending, is sufficient to establish both an absence of valid reason and prejudice through a legitimate expectation of finality.
- Prejudice in this context does not require a showing that the delay impaired the parties’ ability to litigate the restitution amount — loss of a reasonable expectation of finality in sentencing is itself cognizable prejudice.
- Prosecutors must actively manage restitution deadlines; silence after a missed deadline can, over time, defeat the State’s ability to collect restitution even for modest amounts.
Why It Matters
This decision is a practical reminder that restitution is not an open-ended obligation that the State can pursue whenever it gets around to it. Wisconsin law imposes short timeframes precisely because defendants — even those who have caused serious harm — are entitled to know what their sentence means and to plan accordingly. When the State drops the ball for years without explanation and without keeping the defendant on notice, the courts will not rescue that oversight.
For defense practitioners, the case illustrates that a challenge to untimely restitution can succeed even when the dollar amount is small and even when the defendant cannot show concrete evidentiary prejudice. The passage of time, completion of appellate proceedings, and the absence of any communication about pending restitution can collectively establish the kind of legitimate sentencing finality that courts will protect.