On Point blog, page 431 of 483
Enhancer — Judgment on Prior Entered After Commission of Enhanced Offense
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding: A guilty plea suffices to establish a qualifying repeater-enhancement, even though the judgment of conviction on that plea isn’t entered until after commission of the offense being enhanced. ¶¶9-14.
Enhanced Penalties — Proof — Admission: More Required
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding:
¶5 An admission from a defendant stating, “I am a repeater,” without more, is insufficient to constitute an admission of a prior conviction under WIS. STAT. §973.12(1). As the circuit court indicated in its colloquy, “repeater” and “habitual offender” are legal, not factual terms, and a defendant may not be aware of what he or she is admitting.
Enhancer — § 973.01(2)(c), Bifurcated Sentence — Application to Extended Supervision — Remedy
State v. Joseph F. Volk, 2002 WI App 274
For Volk: Charles B. Vetzner, SPD, Madison App
Issue: Whether the extended supervision portion of truth-in-sentencing, § 973.01, supports repeater enhancement, § 939.62(1)(b).
Holding: Because specifies that “confinement” may be enhanced, applying the principle that specification works an exclusion of non-enumerated items, the extended supervision portion of a sentence is not subject to repeater enhancement.
Double Jeopardy – Sentence: Defendant’s Fraud — No Expectation of Finality
State v. Ary L. Jones, 2002 WI App 208
For Jones: Arthur B. Nathan
Issue/Holding:
¶14. The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void and double jeopardy will not bar subsequent resentencing to place the defendant in the position he or she would have been in if the fraud or corruption had been exposed at the time of the original sentence.
Double Jeopardy – Successive Prosecutions: “Statutory Double Jeopardy,” § 939.71 – Conviction of Lesser Offense as Bar to Homicide Prosecution following Victim’s Subsequent Death
State v. Trevor McKee, 2002 WI App 148, PFR filed 6/28/02
For McKee: Kenneth P. Casey, SPD, Jefferson Trial
Issue/Holding: “(T)he prohibition against double jeopardy does not bar a prosecution for murder when the victim of an ‘assault and battery’ dies after a defendant has been convicted of the lesser offense. Diaz v. United States, 223 U.S. 442 (1912),” ¶6.
Due Process – Exculpatory Evidence — Lenient Treatment of Prosecution Witness
State v. Dale H. Chu, 2002 WI App 98, PFR filed 4/23/02
For Chu: Andrew Shaw
Issue: Whether defendant was denied his right to exculpatory evidence when the state failed to disclose that a prosecution witness had received favorable treatment in another case.
Holding:
¶37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not evidence that the witness has been convicted of a crime.”
Enhancer – § 939.62(2m)(d), Persistent Offender — Comparable Crime, Foreign Conviction – Determination
State v. Leonard T. Collins, 2002 WI App 177
For Collins: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding:
¶2. We agree with Collins that Wis. Stat. § 939.62(2m)(d) requires circuit courts to determine independently whether an out-of-state crime is comparable to a Wisconsin “serious felony,” even if the defendant admits that he or she is a persistent repeater. However, because we can conclude as a matter of law that “second degree murder”
Enhancers — § 939.62(2m), Persistent Offender — Comparable Crime, Foreign Conviction
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue/Holding: Burroughs’ prior conviction in Alabama for assault with intent to murder is sufficiently comparable to attempted first degree intentional homicide so as to support exposure to persistent offender sentencing, § 939.62(2m)(c). ¶¶23-27.
Due Process – Notice of Charge – Vague Charging Period
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: The charging period of March 1, 1989, to March 31, 1993, was not too expansive to provide opportunity to prepare a defense, largely because of the victim’s youthfulness and vulnerable relationship (patient-therapist) to defendant, ¶31; and because the alleged offenses occurred during therapy sessions,
Equal Protection – Differential, County-Based Sentencing Guidelines
State v. Roland Smart, 2002 WI App 240, PFR filed 9/24/02
For Smart: Donald T. Lang, SPD, Madison Appellate
Issue: Whether sentencing-guideline disparity for driving while intoxicated under guidelines adopted by local counties pursuant to § 346.65(2m) violates equal protection or due process.
Holding: Sentencing guideline disparities need be supported only by rational basis for equal protection purposes, as “(i)t is not a fundamental right to be free from deprivations of liberty as a result of arbitrary distinctions.”