SCOW to interpret “separate occasions” language in the DV repeater enhancer
State v. Brian Tyrone Ricketts, Jr., 2024AP2291-CR, petition for review of a published decision of the court of appeals, granted 8/18/25; case activity
In an interesting grant that seems to follow naturally from the more recent Rector decision, SCOW is asked to determine the meaning of “separate occasions” in the DV repeater enhancer statute.
Under § 939.621(1)(b), a person is eligible for an enhanced sentence in a DV prosecution if, among other requirements, they have “been convicted on 2 or more separate occasions” of a qualifying DV offense. Notably, the legislature did not say “2 or more convictions” and specifically mandated that those convictions occur on “separate occasions.” Yet, in interpreting identical language elsewhere in the statutes, the Wisconsin Supreme Court has repeatedly held that convictions entered as part of the same court appearance satisfy this “separate occasions” requirement.
However, in 2023, the Court generated at least some uncertainty when it issued its decision in Rector, holding that, in fact, nearly-identical “separate occasions” language in the sex offender registration statute does not cover events that occur at the same time. Thus, in SCOW’s view, two convictions entered as part of the same court proceeding could not satisfy the temporal requirement of “separate occasions.” To reach what it viewed as a commonsense reading, the Rector majority therefore made a complicated set of sideways maneuvers to avoid the holdings of the above-cited cases and, in so-doing, generated a harsh dissent and a rare legislative rebuke in the form of a revised statute conclusively rejecting SCOW’s reading of the text at issue.
While some may have thought this was a setback for efforts to inject commonsense back into the Wisconsin statutes, Ricketts subsequently persuaded the circuit court to apply Rector to this language, thereby directly setting up a direct challenge to longstanding precedent interpreting the “separate occasions” requirement under Wisconsin law.
The grant is therefore an interesting one that exposes tensions within our common law. For Ricketts to win, he either needs SCOW to create different interpretations of “separate occasions” within the same chapter or, more radically, to overrule long-settled precedent interpreting this phrase in context of the habitual criminality repeater. The State’s path to victory, however, also requires some creativity: To win, it needs to persuade SCOW that its commonsense reading of identical language in Rector was wrong…and that’s before we even get to the knotty question of what weight to put on the subsequent actions of the legislature or the ongoing battle over the continued viability of textualism in SCOW. Stay tuned for exciting developments!