On Point blog, page 1 of 1
SCOTUS requires jury to find whether prior offenses occurred on different occasions to enhance sentence under Armed Career Criminal Act
Erlinger v. United States, USSC No. 23-370, June 21, 2024, vacating United States v. Erlinger, 77 F.4th 617 (7th Cir. 2023); Scotusblog page (with links to briefs and commentary)
Whether offenses committed on three “occasions different from one another” for purposes of federal Armed Career Criminal Act must be found by a jury beyond a reasonable doubt.
Defense wins in calculation of the 10-year period under § 346.65(2)(am)2.
State v. Bobby Lopez, 2017AP923-CR, District 2, 2/13/17 (one-judge decision; ineligible for publication); case activity (including briefs)
In order to be “within” the 10-year period under § 346.65(2)(am)2., the subsequent offense must occur before the tenth anniversary of the prior offense. Thus, Lopez’s July 9, 2016, OWI offense is not “within [the] 10-year period” that began on July 9, 2006, the date of his prior offense, and he can’t be charged with second-offense OWI.
Time spent confined for traffic offense sentence is excluded from 5-year repeater period
State v. Jason R. Cooper, 2016 WI App 63; case activity (including briefs)
While a conviction for a motor vehicle offense can’t be used to establish a defendant’s repeater status under § 939.62, time a defendant spent in custody serving a sentence for a motor vehicle is still excluded when computing whether any prior convictions for non-motor vehicle offenses occurred within five years of the crime for which the defendant is being sentenced.
OWI was properly charged as a first offense because prior was more than 5 years old
City of Kaukauna v. Grant R. Loescher, 2014AP954, District 3, 11/4/14 (1-judge decision; ineligible for publication); case activity
Loescher’s 1997 conviction for first-offense OWI is not void because it was properly counted as a first offense despite his OWI conviction in 1992.
Enhancer – Apprendi Right to Jury Trial & 5-Year Limitation Period
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly
Issue: Whether, on a § 939.62(2) “prior-conviction” penalty enhancer, the defendant is entitled to jury resolution that the conviction was in fact within 5 years of commission of the present offense.
Holding:
¶52 … (W)hen Shepard and Apprendi are read together,
Enhancer – Timing of Prior Conviction – Tolling During “Intensive Sanctions”
State v. Steven L. Pfeil, 2007 WI App 241
For Pfeil: John P. Tedesco, SPD, Madison Appellate
Issue/Holding: Time spent in custody of the (now-lapsed) division of intensive sanctions tolls the limitation period for prior convictions, § 939.62(2):
¶2 …. We conclude that supervision under the intensive sanctions program constitutes “actual confinement” within the meaning of Wis. Stat. § 939.62(2). The intensive sanctions program operates as a correctional institution,
Enhancer — Judgment on Prior Entered After Commission of Enhanced Offense
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding: A guilty plea suffices to establish a qualifying repeater-enhancement, even though the judgment of conviction on that plea isn’t entered until after commission of the offense being enhanced. ¶¶9-14.
Enhancers – Jail as Condition of Probation Tolling Time Limit for Repeater
State v. Todd E. Crider, 2000 WI App 84, 234 Wis. 2d 195, 610 N.W.2d 198
For Crider: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether jail time spent as a condition of probation qualifies as “actual confinement serving a criminal sentence,” so as to extend the § 939.62(2) 5-year period within which a prior conviction must fall to support a repeater enhancement.
Holding: Though time served as a condition of probation is generally not a “sentence,”
Enhanced Penalties — § 939.62(2), Time for Qualifying Offense — Confinement under Hold as Tolling
State v. Tyrone Price, 231 Wis.2d 229, 604 N.W.2d 898 (Ct. App. 1999)
For Price: James L. Fullin, Jr., SPD, Madison Appellate.
Issue: Whether confinement time spent on parole holds qualifies as “actual confinement serving a criminal sentence” thereby extending the five-year period for a prior, qualifying sentence-enhancement conviction under § 939.62(2).
Holding: Time spent under parole hold qualifies as time spent under a criminal sentence within the meaning of the repeater act:
¶13 Since the expansion of the five-year period is at issue in this case,