On Point: D. Type of punishment

State v. Shaun R. Ezrow, 2016AP1611-CR, 5/25/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

The cost a business incurred in enhancing its security system after an employee stole money was a proper item of restitution under § 973.20.

State v. Shawn W. Forgue, 2016AP2414-CR, 5/11/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)

Forgue, convicted of misdemeanor battery and disorderly conduct, appealed the circuit court’s decision to exclude evidence of the victim’s prior violent conduct toward him (i.e. McMorris evidence) and her other bad acts. He also appealed an order setting restitution at $269.50 for the victim’s lost wages and $1,000 to the Crime Victim Compensation Program.

State v. Kyle Lee Monahan, 2014AP2187, 4/27/17, District 4 (not recommended for publication) review granted 11/13/17; Affirmed 6/29/18; case activity (including briefs)

Kyle Monahan was convicted of OWI homicide after a jury trial. The trial court excluded evidence offered to show that Monahan was not, in fact, driving the vehicle when it crashed. On appeal, the state agrees with Monahan that the evidence should have come in, but argues that its exclusion was harmless. The court of appeals agrees with the state.

State v. J.J.S., 2016AP1519, 4/25/17, District 3 (1-judge appeal; ineligible for publication); case activity

The case appears to be an issue of first impression: Whether §938.34(5)(c), which provides that juveniles under 14 can’t be required to pay more than $250 in restitution, refers to the juvenile’s age when the State filed the delinquency petition or the juvenile’s age at the time of disposition. The court of appeals, choosing the time of disposition, upholds the $1,600 restitution award against J.J.S., even though he was just 13 when the filed its petition.

Nelson v. Colorado, USSC No. 15-526, (April 20, 2017), reversing and remanding Colorado v. Nelson, 364 P.3d 866 (2015); SCOTUSblog page (inlcuding links to briefs and commentary).

This decision establishes that a State cannot force an exonerated defendant to file a civil suit and prove his innocence by clear and convincing evidence in order to recover costs, fees, and restitution he paid upon conviction.

Cle A. Gray, Jr. v. Robert Humphries, 2016AP584-CR, 4/6/17, District 4 (one-judge decision; ineligible for publication); case activity (including state’s brief)

Gray sought to prevent the Department of Corrections from taking certain money from his prison accounts to pay the costs and restitution Gray had been ordered to pay, but the court of appeals holds DOC’s collection actions were valid under the judgment of conviction and relevant statutes.

State v. David L. Johnson, 2015AP2605-CR, 4/4/17, District 1 (not recommended for publication); case activity (including briefs)

A jury found Johnson guilty of aggravated battery and false imprisonment but acquitted him of sexual assault and strangulation. The court imposed 2 consecutive 6-year sentences.  Johnson appealed and argued that the postconviction court erred in denying his claim for ineffective assistance of trial counsel without a hearing, imposing a DNA surcharge in violation of the ex post facto clause, and in denying resentencing. 

State v. Roy A. Mitchell, Jr., 2016AP937-CR, 3/16/17, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Mitchell pled guilty to misdemeanor theft, resisting or obstructing an officer, and prostitution in exchange for the State’s agreement to dismiss charges for misdemeanor/battery, strangulation/suffocation, and felony theft. But when the State sought restitution for medical expenses incurred by the victim on the dismissed charges that involved physical contact, Mitchell objected because the victim’s injuries’ and expenses were not related to the crimes for which Mitchell was convicted and sentenced.

State v. Earnest Lee Nicholson, 2015AP2154-CR & 2015AP2155-CR, 3/7/2017, District 1 (not recommended for publication); case activity (including briefs)

Nicholson challenges the validity of the no-contact order he was convicted of violating, and also argues his rights to confrontation and to testify were violated. The court of appeals rejects his claims.

State v. Tabitha A. Scruggs, 2017 WI 15, affirming a published court of appeals decision; 2014AP2981-CR, 2/23/2017; case activity (including briefs)

On June 30, 2013, Wisconsin enacted its biennial budget bill. Among its provisions were changes to the DNA surcharge applied to criminal convictions in Wisconsin. The $250 surcharge became mandatory rather than discretionary for all felonies (rather than just a few as previously), and would now be applied on a per-count basis rather than once per case. The bill also created a new, mandatory $200-per-count surcharge for misdemeanors.