On Point blog, page 1 of 1
SCOW affirms circuit court’s authority to reinstate previously dismissed conviction under 346.63(1)
State v. Carl L. McAdory, 2025 WI 30, 7/1/25, case activity
A unanimous SCOW held that the circuit court had authority under Wis. Stat. 346.63(1)(c) to reinstate Carl McAdory’s conviction for operating a vehicle with a restricted controlled substance in his blood, which was dismissed when he was also convicted of operating a motor vehicle under the influence of a controlled substance that arose out of the same incident or occurrence, after the OWI conviction was vacated on appeal. The Court also rejected McAdory’s claims that the State forfeited the right to seek reinstatement by not raising the issue on his appeal from his OWI conviction, that the circuit court did not comply with the COA’s mandate, and that he was subjected to double jeopardy.
The concurring opinion, written by Justice Ziegler and joined by Justice Bradley, would have overruled SCOW and COA precedents establishing that the circuit court must dismiss all but one of the convictions when a defendant is tried and found guilty of multiple offenses under § 346.63(1) that arise out of the same incident or occurrence.
COA holds mandatory minimum for OWI 5 or 6 doesn’t allow for probation
State v. Lynne M. Shirikian, 2023 WI App 13; case activity (including briefs)
Shirikian pleaded to OWI as a fifth offense. Back in 2019, the legislature amended the statutes to create a both a presumptive and a mandatory minimum sentence for OWI 5th and OWI 6th. See 2019 Wis. Act 106; Wis. Stat. § 346.65(2)(am)5. The presumptive minimum requires at least 18 months of initial confinement, but the statute lets a court go lower if it finds doing so in the best interest of the community and not harmful to the public. The court of appeals now holds that even if a court decides to give less than 18 months IC, it’s still obligated to impose a bifurcated sentence. Since bifurcated sentences necessarily involve at least a year of IC, see Wis. Stat. § 973.01(2)(b), that year is the true mandatory minimum. Further, the court holds, a sentencing judge can’t avoid this minimum by imposing and staying a prison sentence and ordering of probation. Because the judge here did order probation, the court of appeals remands with directions that the lower court impose a legal sentence.