On Point blog, page 6 of 7
Probation – Length of, Judicial Authority to Reduce
State v. Carl L. Dowdy, 2010 WI App 58, review granted, 3/16/11; for Dowdy: Bryan Cahill; BiC; Resp.; Reply
Judges lack statutory authority to reduce the length of probation.
¶16 We conclude that we do not have cause to refer to legislative history or other extrinsic tools, because the plain language of Wis.
Judicial Bias – Sentencing after Revocation
State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10
court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply
The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on probation to do just that if his probation were revoked.
PLRA – Partial Dismissal as Strike
State ex rel. Titus Henderson v. Raemisch, 2010 WI App 114; pro se; Resp. Br.
Partial dismissal of a prisoner lawsuit doesn’t counts as a “strike” within the meaning of the § 801.02(7)(d) “three-strike” provision of the Wisconsin Prisoner Litigation Reform Act.
The PLRA regulates “prisoner” lawsuits. Typically, these relate to conditions of confinement, something the SPD doesn’t provide representation for, but our courts in their infinite wisdom apply the strictures of the PLRA to matters of SPD concern such as cert review of revocations,
State v. Lathadis L. Luckett, 2009AP2679-CR, Distict II, 4/21/10
court of appeals decision (1-judge; not for publication); for Luckett: Cheryl A. Ward; BiC; Resp.; Reply
Extended Supervision Conditions
ES condition barring Luckett from residing”with any person in any place in which children or women reside [without] Court’s permission” neither unreasonable nor unconstitutionally overbroad.
The court of appeals stresses that Luckett’s history “demonstrates domestic violence”; indeed, the immediate crime is itself DV-related.
State v. Erik A. Cochran, 2009AP2660-CR, District III, 4/13/10
court of appeals decision (1-judge; not for publication); for Cochran: Michael J. Schmidt; BiC; Resp.
Probation Extension
Extension of probation due to failure to discharge restitution obligation upheld, against argument Cochran had made good-faith effort to pay but lacked ability to do so.
State v. John E. Brown, 2009AP1498-CR, District I, 3/30/2010
court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.; Reply Br.
Conditional Jail Time
“Applying the plain language of § 973.09(4)(a), it is clear that straight confinement time may be imposed as a condition of probation, and that although the trial court ‘may grant’ work-release privileges, it is not required to do so.” It follows that such privileges may be revoked,
Self-Incrimination: Inapplicable to Reconfinement Hearing
State v. Travis Joe Brimer, Jr., 2010 WI App 57; for Brimer: Lora B. Cerone, SPD, Madison Appellate; Resp. Br.; Reply Br.
“The right against self-incrimination only applies at criminal proceedings or “other proceeding … where the answers might incriminate [the defendant] in future criminal proceedings.” Allen v. Illinois, 478 U.S. 364, 368 (1986) (citations omitted),” ¶7. Because a reconfinement hearing isn’t part of the criminal process,
State v. Eric D. Genge, 2009AP1379-CR, Dist II, 1/20/10
court of appeals decision (1-judge; ineligible for publication)
Probation Extension, Unpaid Restitution
Probation properly “extended to get more substantial payments towards his restitution obligation”; caselaw prohibition on “debt collection” extensions limited to where record “teeming with substantial reasons not to extend”; extension here served salutary purpose of allowing Genge to seek PTSD treatment.
Review — Reconfinement Sentence (After Revocation of Extended Supervision), Imposed by Different Judge – Review of Original Sentencing Transcript not Absolute Necessity
State v. Clayborn L. Walker, 2008 WI 34, reversing 2007 WI App 142
For Walker: Amelia L. Bizzaro
Issue: Whether the judge is required, at a TIS reconfinement hearing, to have read the original sentencing transcript.
Holding:
¶3 We agree with the State and conclude that State v. Gee [3] misinterpreted our decision in Brown.
Review — Reconfinement Sentence (After Revocation of Extended Supervision) – Exercise of Discretion
State v. John C. Brown, 2006 WI 131, affirming 2006 WI App 44
For Brown: Randall E. Paulson, SPD, Milwaukee Appellate
Amicus: Robert R. Henak and Amelia L. Bizzaro; Walter J. Dickey & David E. Schultz
Issue/Holding:
¶22 We conclude that a reconfinement decision, like an initial sentencing decision, involves the circuit court’s discretion, and we review the circuit court’s decision to determine whether that discretion was erroneously exercised.