State v. Xavier V. Fleming

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 11, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2025AP1641-CR Cir. Ct. No. 2017CF1680

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

XAVIER V. FLEMING,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
ANN M. PEACOCK, Judge. Reversed.

Before Graham, P.J., Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2025AP1641-CR

¶1 PER CURIAM. Xavier Fleming appeals a circuit court order
awarding approximately $2,500 in restitution to the Crime Victim Compensation
Program. Fleming argues that the court erred in granting restitution because the
State’s proposed restitution order was filed outside the statutory timeframe, there
was no valid reason for the five-and-one-half-year delay, and the delay prejudiced
him. We agree, and, accordingly, we reverse.

BACKGROUND

¶2 In August 2018, pursuant to a plea agreement, Fleming was
convicted of one count of felony murder as a party to the crime. On December 17,
2018, the circuit court sentenced Fleming to 15 years of initial confinement and 10
years of extended supervision. At the sentencing hearing, the State asked for three
weeks to submit a proposed restitution order. The judgment of conviction
indicates that the State was given 30 days to submit a proposed restitution order.

¶3 No further action was taken regarding restitution until the State filed
a motion for leave to submit an untimely restitution order on June 13, 2024.
Pertinent here, the motion indicated that the State was seeking restitution to
reimburse the Crime Victim Compensation Program for a portion of the victim’s
funeral expenses that the Program had paid to the victim’s family.1 The motion
did not address the amount of restitution requested. Fleming objected to the
motion on the grounds that the State had no valid reason for the delay between

1
The motion also requested compensation to reimburse an insurer for money the insurer
paid to the victim, but the State later dropped this request for lack of supporting documentation.
This request is not at issue on appeal, and we do not address it further.

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No. 2025AP1641-CR

Fleming’s sentencing and the State’s restitution request, the delay was lengthy,
and the delay prejudiced Fleming.

¶4 The circuit court held a hearing on the motion, at which the State
explained that it was seeking approximately $2,500. The court concluded that
restitution is appropriate in this case. On July 30, 2024, after the court received
additional documentation from the State, the court entered a restitution order for
$2,554.88, plus administrative costs. Fleming appeals.

DISCUSSION

¶5 Fleming argues, as he did in the circuit court, that the court lacked
authority to order restitution because the delay was lengthy, the State had no
reason for the delay, and the delay prejudiced him. The scope of a circuit court’s
authority to order restitution presents a question of statutory interpretation that this
court reviews de novo. State v. Ziegler, 2005 WI App 69, ¶10, 280 Wis. 2d 860,
695 N.W.2d 895.

¶6 The restitution statute, WIS. STAT. § 973.20 (2023-24), requires a
circuit court to order restitution to a victim “unless the court finds substantial
reason not to do so and states the reason on the record.”2 § 973.20(1r). When the
court orders, but does not set, restitution at sentencing, § 973.20(13)(c) provides
four alternative procedures for determining the amount due. Ziegler, 280 Wis. 2d
860, ¶12. Each procedure has a timeframe of 90 days or shorter. See
§ 973.20(13)(c)1.-4.

2
All references to the Wisconsin Statutes are to the 2023-24 version. The 2023-24
version of the relevant statutes has not materially changed from the version of the statutes in
effect when Fleming committed his crimes in 2017.

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No. 2025AP1641-CR

¶7 The statutory timeframes are directory, not mandatory, meaning that
this court need not vacate the restitution order whenever the award is made outside
of the time limit. State v. Perry, 181 Wis. 2d 43, 53, 510 N.W.2d 722 (Ct. App.
1993); Ziegler, 280 Wis. 2d 860, ¶14. However, that the timeframes are directory
does not mean that they are “discretionary or permissive,” because the legislature
plainly intended that the statutory time limits be followed. Ziegler, 280 Wis. 2d
860, ¶14. Accordingly, restitution orders resulting from proceedings held outside
of the statutory timeframes will only be upheld by this court based on the
balancing of two factors. Id. We “must balance the length and reasons for the
delay against the injury, harm or prejudice to the defendant resulting from the
delay.” Id., ¶18. There is no “pecking order” to the factors; in other words, even
if we determine that there is no valid reason for the delay, we must still consider
whether there is prejudice to the defendant. Id., ¶¶17-18.

¶8 The State concedes, as it did in the circuit court, that it did not
submit a proposed restitution order within the statutory timeframes and that it “has
no specific explanation for the delay” of more than five and one-half years. We
conclude that, based on the State’s concession and the absence of evidence to the
contrary, the State has no valid reason for the five-and-one-half-year delay in
submitting its restitution request.

¶9 We now turn to whether the five-and-one-half-year delay caused
“injury, harm or prejudice” to Fleming. See id., ¶18. “[T]he longer the time
between the sentencing hearing and the restitution determination proceeding, the
more inherent the prejudice to the defendant.” Id., ¶19. A defendant may be
prejudiced because the defendant possessed a legitimate expectation of finality in
the defendant’s sentence. Id.

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No. 2025AP1641-CR

¶10 We conclude that Fleming is prejudiced because, under the relevant
circumstances here, Fleming had a legitimate expectation of finality in his
sentence—specifically, a legitimate expectation that he would not be required to
pay restitution. “Evaluating the extent and legitimacy of a defendant’s expectation
of finality is a multi-factor inquiry that rests largely on the facts of each individual
case.” State v. Robinson, 2014 WI 35, ¶43, 354 Wis. 2d 351, 847 N.W.2d 352.
The legitimate expectation of finality may be influenced by many factors,
including “the completion of the sentence, the passage of time, the pendency of an
appeal, [and] the defendant’s misconduct in obtaining [a] sentence.” See State v.
Jones, 2002 WI App 208, ¶10, 257 Wis. 2d 163, 650 N.W.2d 844 (discussing
expectation of finality in context of double jeopardy).

¶11 Here, when the State filed its untimely restitution request, while
Fleming had not completed his sentence, he had served over one third of his initial
confinement; over five and one-half years had passed; his appeal had been decided
three and one-half years earlier; and there is no allegation that he contributed to
the delayed restitution request or committed any misconduct in obtaining his
sentence. In addition, there is no evidence that the State, the circuit court, or the
victim’s family communicated to Fleming in those five and one-half years that he
would still be expected to pay restitution. Cf. State v. Armstrong,
No. 2010AP1056-CR, unpublished slip op., ¶16 (WI App May 30, 2012) (finding
no legitimate expectation of finality in part because victim “made numerous, if not
always successful, attempts to obtain restitution that Armstrong knew about”).3

3
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored, unpublished
opinions issued after July 1, 2009, for their persuasive value).

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No. 2025AP1641-CR

¶12 The State argues that Fleming does not have a legitimate expectation
of finality in sentencing because he did not present any evidence to support his
alleged subjective belief that he would not have to pay restitution. However, our
conclusion to the contrary is based on our consideration of the factors set out in
Jones, 257 Wis. 2d 163, ¶10, for determining whether a defendant has a legitimate
expectation of finality in sentencing. The State does not argue that the Jones
analysis does not apply here. In addition, as we have explained, there is no
evidence of communication between Fleming and the circuit court, the State, the
Crime Victim Compensation Program, or the victim’s family about restitution
after the 30-day deadline for submitting a proposed restitution order passed, such
that Fleming should have anticipated an untimely restitution request.

¶13 The State also suggests that any prejudice to Fleming’s legitimate
expectation of finality in sentencing based on consideration of the Jones factors is
diminished by Fleming’s failure to show that the delay hindered the State from
substantiating, or Fleming from challenging, the State’s request. However, our
task under Ziegler is to determine the length of and reasons for the delay, whether
there is prejudice to Fleming from the delay, and to balance these two
determinations against each other. See Ziegler, 280 Wis. 2d 860, ¶18. As
explained above, we conclude that there is no valid reason for the five-and-one-
half-year delay and that there is prejudice to Fleming’s legitimate expectation of
finality in sentencing from that delay. Regardless of whether the prejudice to
Fleming could be greater in circumstances not present here, we further conclude
that, taken together, these two determinations weigh in the same direction against
the circuit court’s authority to grant the untimely restitution request here.

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No. 2025AP1641-CR

CONCLUSION

¶14 For the reasons set forth above, we reverse the order granting the
State’s untimely restitution request.

By the Court.—Order reversed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

7