On Point: D. Type of punishment

State v. Ray Shawn Cherry, 2008 WI App 80
For Cherry: John T. Wasielewski

Issue/Holding:

¶5        The statutes governing this issue are clear. If a trial court sentences a defendant to a felony involving a sex crime contrary to Wis. Stat. §§ 940.225, 948.02(1) or (2) 948.025, or 948.085, the trial court must order the defendant to pay the $250 surcharge for the DNA sample.

State v. Ray Shawn Cherry, 2008 WI App 80
For Cherry: John T. Wasielewski

Issue: Whether the sentencing court properly exercised discretion in imposing a DNA surcharge, where it misconstrued such action as mandatory rather than permissive and ignored the defendant’s prior such assessment.

Holding:

¶9        We hold that in assessing whether to impose the DNA surcharge, the trial court should consider any and all factors pertinent to the case before it,

State v. Antonio M. Hall, 2007 WI App 168

For Hall: Michael D. Kaiser

Issue/Holding:

¶17   From our examination of these statutory provisions, we find no ambiguity in the relevant language and conclude that the provisions of Wis. Stat. §§ 973.01(3g), 973.01(3m) and 302.113(9)(am) express a clear intent to restrict the sentencing discretion of the reconfinement court at a reconfinement hearing;

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: The sentencing court satisfied Gallion’s required linkage:

¶11      … Here, the court explained that it did not consider Thexton’s conduct so serious that it required Thexton to be incarcerated for the length of time that might be appropriate for other sex offenders,

State v. Ahern Ramel, 2007 WI App 271
For Ramel: Wm. Tyroler, SPD, Milwaukee Appellate

Issue/Holding:

¶14      A fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. See id. Here, however, with no explanation from the sentencing court of how the fine imposed advanced those objectives,

State v. Kathy J. Johnson, 2007 WI App 41
For Johnson: Jeremy Perri, SPD, Milwaukee Appellate

Issue: Whether DOC policy, for inmates under sentence commencing prior to July 26, 2003, to take no position on an ERP petition constitutes approval of the petition under Wis. Stat. § 302.05(3)(e).

Holding:

¶8        Wisconsin Stat. § 302.05(3)(e) governs inmate petitions for the determination of eligibility for the ERP for inmates sentenced prior to the effective date of § 302.05, 

State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶72      Wisconsin Stat. § 973.06 permits the court to impose a lengthy list of costs upon an unsuccessful defendant. At sentencing, the court may require a probationer to reimburse the county or the state, as applicable, “for any costs for legal representation . . . for the defense of the case.”

State v. Earl W. Haase, 2006 WI App 86, (State’s) PFR filed 5/17/06
For Haase: Glenn L. Cushing, SPD, Madison Appellate

Issue: Whether restitution may be ordered for damage caused to a squad car destroyed by fire during pursuit of the defendant.

Holding:  A governmental “agency must be a direct victim of the criminal conduct to be reimbursed for a loss,

Herr v. Bradley D. DeBraska, 2006 WI App 29

Issue/Holding1: Where the defendant and victim had fully settled a civil claim for defendant’s liability arising out of the crime, but the defendant’s wages were subsequently garnished by the State to satisfy the restitution order in the criminal case, the trial court properly exercised discretion to reopen the civil judgment, to determine whether the civil judgment should be offset against the restitution order,

State v. Anthony D., 2006 WI App 218
For Anthony D.: Susan E. Alesia, SPD, Madison Appellate

Dicta: ¶7 n. 2:

We note that the language of the juvenile restitution statute differs from that of the criminal restitution statute, Wis. Stat. § 973.20. The criminal statute does not require the court to make a finding that the defendant can pay the restitution amount,