On Point: B. Published opinions

State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: In sentencing for OWI, “it was not error for the court to seek guidance from the local guidelines” in determining the fine on an OWI sentence. ¶10, citing State v. Jorgensen, 2003 WI 105, ¶¶2, 27, __ Wis. 2d __, 667 N.W.2d 318,

State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶11. Second, Kuechler argues that “[e]ven if the size of the fine could be based exclusively on a guideline recommendation, the court here failed to give adequate reasons for choosing the more severe of two alternative guidelines.” We disagree. The court exercised appropriate discretion when it chose to impose a fine based on the guidelines that highlighted aggravating factors rather than on the guidelines that highlighted mitigating factors.

State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶13. Fourth, Kuechler contends that the trial court imposed the fine without first ascertaining his ability to pay. We agree. Because Kuechler timely raised the issue of ability to pay in his postconviction motion, the trial court had a duty to make a determination on that issue.

Michael S. Johnson v. Berge, 2003 WI App 51

Issue/Holding: Review of issue preclusion is governed by Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 594 Wis. 2d 370 (1999). The record isn’t sufficient to review the issue. ¶¶13-14.

For discussion on preclusive effect of state court suppression ruling on federal court dealing with same evidence, see U.S.

State v. Kevin J. Van Riper, 2003 WI App 237
For Van Riper: Anthony L. O’Malley

Issue/Holding:

¶13. Thus, the cumulative effect of Wideman and Spaeth is as follows: (1) the proof requirements of Wis. Stat. § 973.12(1), the repeater statute in the criminal code, do not apply in OWI prosecutions (Wideman); and (2) a DOT teletype is competent proof of a defendant’s prior convictions (Spaeth)

.…

¶16.

State v. James W. Keith, 2003 WI App 47, PFR filed 3/5/03
For Keith: Christopher A. Mutschler

Issue/Holding:

¶10 WISCONSIN STAT. § 343.305(5)(a) requires police to offer an alternative chemical test to persons who submit to a chemical test under § 343.305 and who request an alternative test.

…

¶12 The record shows that after Keith’s arrest, while traveling to the hospital,

State v. Richard L. Verkler, 2003 WI App 37
For Verkler: Christopher A. Mutschler

Issue/Holding:

¶1. In State v. Reitter, 227 Wis. 2d 213, 217-18, 595 N.W. 2d 646 (1999), our supreme court held that law officers are under no affirmative duty to advise custodial defendants that the right to counsel does not apply to the implied consent setting.

State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03
For Swinson: Pamela Pepper

Issue/Holding: Separate theft by fraud charges, § 943.20(1)(d), involving a scheme to defraud the same victim over a period of time, were not multiplicitous. Though identical in law, they weren’t identical in fact, because each charge involved a distinct false representation, as well as separate volitional acts. 31-32. Nor does legislative intent support telescoping the distinct acts into one charge.

State v. Theodore J. Krawczyk, 2003 WI App 6, PFR filed 1/21/03
For Krawczyk: John T. Wasielewski

Issue: Whether vacating plea-bargain based conviction and (concurrent) sentence for multiplicitous charge was adequate remedy, as opposed to reinstating the not guilty pleas.

Holding:

¶34. We see no reason to disturb the remedy the trial court granted for the double jeopardy violation. First, when a multiplicitous count is reversed on appeal,

State v. Donald R. Wield, 2003 WI App 179, PFR filed 8/28/03
For Wield: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: The persistent repeater law, § 939.62(2m) is constitutional; State v. Radke, 2003 WI 7, 259 Wis. 2d 13, 657 N.W.2d 66, controls. ¶¶20-21.