On Point: Published 2005

State v. Kent Kleven, 2005 WI App 66
For Kleven: Roberta A. Heckes

Issue/Holding:

¶14. We conclude that, provided the sentence imposed exceeds the maximum term of imprisonment established for the base offense, a court’s remarks attributing a portion of the sentence to an applicable enhancer does not constitute grounds to vacate that portion of the sentence. As the supreme court explained in State v.

State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell

Issue/Holding:

¶16. Matke also contends that the trial court’s interpretation of Wis. Stat. § 346.65(2), which is now ours as well, violates due process because it permits the court to sentence him for a sixth OMVWI without requiring the State to convince a jury beyond a reasonable doubt that he had five prior OMVWI convictions.

State v. Ryan E. Baker, 2005 WI App 45, PFR filed 3/17/05
For Baker: William E. Schmaal, SPD, Madison Appellate

Issue/Holding: The plain text of § 969.02(6) mandates that bail money be used to satisfy court costs, with no room for discretionary return to the depositor rather than payment of costs. ¶¶7-9.

This is a misdemeanor, but the relevant felony statute, § 969.03(4),

State v. Martin D. Triplett, 2005 WI App 255
For Triplett: Syovata Edari, SPD, Milwaukee Appellate / Milwaukee Trial

Issue: Whether the officer’s inability to perform an “effective” patdown permitted a further intrusion that led to the discovery of contraband.

Holding:

¶12      Our supreme court has not, however, addressed the scope of a permissibleTerry search where an effective patdown is impossible.

State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn

Issue/Holding: The sentencing court properly exercised discretion in denying eligibility for Earned Release, § 302.05(3), despite misperceiving at one point that defendant was statutorily ineligible:

¶17 … [A]t the December 6, 2004, [postconviction] hearing … [t]he court stated:

Well, of course, the Court is very familiar with Mr. 

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue: Whether Stank was entitled to an evidentiary hearing, relative to the credibility of the informant, in support of his attack on probable cause for the search warrant.

Holding:

¶30      We hold that Stank was not entitled to such a hearing. In Morales v. State, 44 Wis.

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue: Whether a time lag of two months between the informant’s observations and the application for the search warrant rendered the warrant stale.

Holding: Passage of time dose not alone render probable cause stale; the warrant-issuing court may consider various factors, ¶33 (citing State v. Multaler,

State v. Troy Curtis Christensen, 2005 WI App 203
For Christensen: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Given proper notice that calls are subject to recording or monitoring, WESCL allows intercepts of outgoing jail calls notwithstanding the potential for capturing attorney-client calls. (State v. Deonte D. Riley, 2005 WI App 203, ¶13 n. 5, which left this issue open, thereby extended.)

There was no indication that an attorney-client call had in fact been intercepted,

State v. Deonte D. Riley, 2005 WI App 203
For Riley: William E. Schmaal

Issue/Holding: A recorded message heard by any jail inmate placing an outgoing call, to the effect the call may be recorded, was sufficient to trigger WESCL’s one-party consent exception:

¶10      The WESCL is patterned after Title III of the federal Omnibus Control and Safe Streets Act of 1968. …

¶11      Courts interpreting the federal law have concluded that “[C]onsent may be express or may be implied in fact from ‘surrounding circumstances indicating that the [defendant] knowingly agreed to the surveillance.’” United States v.

State v. Neil P. Jackson, 2005 WI App 104
For Jackson: Timothy A. Provis

Issue/Holding:

¶7 Jackson alleges that the jury instruction on conspiracy violated his right to due process because, he contends, “conspiracy to attempt” is a nonexistent crime. Jackson relies on United States v. Meacham, 626 F.2d 503 (5th Cir. 1980), and People v. Iniguez,