On Point blog, page 213 of 214
Consecutive Sentences — No Authority to Impose, Relative to Jail Time as Condition of Probation in Another Case — Remedy of Resentencing
State v. Daron E. Maron, 214 Wis. 2d 384, 571 N.W.2d 454 (Ct. App. 1997)
For Maron: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding1:
… We conclude that § 973.15(2), Stats., does not give the trial court authority to order that the sentence be served consecutive to jail time already being served as a condition of probation. …
…
Subsequent amendment to § 973.15,
Exigent Circumstances – Destruction of Evidence (Drugs) – Entry of Bedroom
State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997)
For Kiekhefer: Linda Hornik
Issue/Holding: The odor of burning marijuana from within a closed bedroom did not create exigent circumstances for the police, who did have permission to be in the house, to enter the bedroom:
According to Londre, they believed Kiekhefer was in possession of a large amount of marijuana.
§ 943.10, Burglary (Entry with Intent to Commit Felony) — Unanimity as to Intended Felony not Required
State v. Gordon Hammer, 216 Wis. 2d 214, 576 N.W.2d 285 (Ct. App 1997)
For Hammer: Charles W. Jones, Jr.
Issue: Whether juror unanimity is required for burglary, as to which felony was intended during the unlawful entry.
Holding:
In addressing Hammer’s unanimity claim, we engage in a two-step process. We must first determine whether this statute creates only one offense with multiple modes of commission or,
Arrest — Test for Custody — Temporary Stop Not Converted to Arrest by Moving Suspect
State v. Quartana, 213 Wis.2d 440, 570 N.W.2d 618 (Ct. App. 1997)
For Quartana: Donal L. Connor II
Issue/Holding:
… Thus, when a person under investigation pursuant to a Terry stop is moved from one location to another, there exists a two-part inquiry. First, was the person moved within the “vicinity?” Second, was the purpose in moving the person within the vicinity reasonable?”Vicinity” is commonly understood to mean “a surrounding area or district”
Consent – Coercion — Threat to Obtain Warrant
State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997)
For Kiekhefer: Linda Hornik
Issue/Holding:
“Police may not threaten to obtain a search warrant when there are no grounds for a valid warrant, but `[w]hen the expressed intention to obtain a warrant is genuine … and not merely a pretext to induce submission, it does not vitiate consent.’” United States v.
Restitution — Limitations — Bail-Bond Disbursement
William Olson v. Kaprelian, 202 Wis. 2d 377, 550 N.W.2d 712 (Ct. App. 1996)
For Olson: Terry W. Rose
Issue: Whether bail posted under a bond in a seprate criminal case may be forfeited in order to satisfy a restitution obligation.
Holding:
In regards to this jurisdictional question, Olson … argues that a trial court has no jurisdiction to simply issue an order that assigns funds directly from a bond to the crime victim.We agree and thus hold that the trial court’s order is void as a matter of law.
Restitution — Defenses — Civil Settlement (Setoff)
William Olson v. Kaprelian, 202 Wis. 2d 377, 550 N.W.2d 712 (Ct. App. 1996)
For Olson: Terry W. Rose
Issue/Holding:
The statutory section governing restitution allows a defendant to reduce civil damages awarded to the crime victim by amounts paid pursuant to a restitution order. See § 973.20(8), Stats. We read this statute to likewise enable a defendant to try to reduce the amount he or she owes because of a restitution award during settlement negotiations on the companion civil case.
WESCL, §§ 968.27 – .37 — Unilateral Public Disclosure Not Authorized – Complaint Containing Such Disclosure Should Be Sealed
State v. Kevin Gilmore, 201 Wis. 2d 820, 549 N.W.2d 401 (1996), affirming, 193 Wis. 2d 403, 535 N.W.2d 21 (Ct. App. 1995)
For Gilmore: Robert R. Henak
Issue/Holding:
We hold that while WESCL does not authorize the State’s unilateral public disclosure of intercepted communications in a criminal complaint, the State may incorporate intercepted communications in a complaint if the State files the complaint under seal with the circuit court.
Reasonable Suspicion — Stop — Duration — Seeking Consent to Search Automobile After Purpose of Stop Fulfilled
State v. Daniel L. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996)
For Gaulrapp: Ralph A. Kalal
Issue/Holding: Asking the motorist, during a routine stop for a muffler violation, if he had drugs or weapons and then obtaining permission to search the vehicle didn’t illegally extend the detention:
The trial court here made extensive findings, and the record supports its findings. The court found the detention was of a short duration and the request to search was made within a reasonable time.
Judicial Bias/Disqualification — Judge Close Relative of “Counsel Thereto” A Party
State v. Crystal Harrell a/k/a Parker, 199 Wis. 2d 654, 546 N.W.2d 115 (1996)
Issue/Holding:
The issue before us is whether, in a case tried by the district attorney’s office, a circuit court judge, whose spouse is an assistant district attorney in the same county, is required to disqualify himself or herself under either Wis. Stat. § 757.19(2)(a) (1993-94),1–prohibiting a judge from hearing a case when a close relative is “counsel thereto”