On Point blog, page 64 of 96
State v. Dione Wendell Haywood, 2009 WI App 178
court of appeals decision; for Haywood: Robert E. Haney
Battery to Peace Officer, § 940.20(2), Elements
It is no defense to battery-to-officer that the officer refused to leave the premises when the resident withdrew consent to enter, because acting “lawfully” is not an element of the offense: “a law-enforcement officer need not be acting ‘lawfully’ for what he or she does to be done in the officer’s ‘official capacity.’
State v. Jeremy D. Schladweiler, 2009 WI App 177
Sentence modification based on new factor; Earned Release Program and Challenge Incarceration Program
State v. Jeremy D. Schladweiler, 2008AP3119-CR, Dist II, 11/11/09
Pro se
Issue/Holding:
¶7 Sentence modification involves a two-step process. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). First, a defendant must show the existence of a new factor thought to justify the motion to modify sentence.
State v. Charles Lamar, 2009 WI App 133, review granted
Consecutive sentences following partial plea withdrawal and reconviction
Click here for court of appeals decision, petition for review granted 10/27/10
Defense counsel: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding: After sentencing on 3 separate counts, the trial court granted Lamar’s motion to withdraw his guilty pleas to 2 of the counts. He continued to serve the sentence on the unchallenged count. Upon subsequent reconviction on the 2 counts,
State v. Norbert Aaron Mathis, 2008AP2616-CRNM, Certification
Order for DNA sample and surcharge
Click here for certification order
For Mathis: Donna Odrzywolski
We [District IV] certify this appeal to the Wisconsin Supreme Court pursuant to Wis. Stat. Rule 809.61 (2007-08), to resolve a conflict among the districts of the court of appeals that has arisen as a result of our decision in State v. Cherry, 2008 WI App 80, ¶¶8-9, 312 Wis.
Restitution – Hearing – Procedure – Notice, Discovery
State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate
Issue/Holding:
¶59 Fernandez additionally argues that the lack of advance written notice of the Dalka and CNR claims violated his due process rights. In response, the State contends that Fernandez’s due process rights were protected by the statute, which provides for “an opportunity to be heard,
Restitution – Limitations – Exercise of Discretion: Reimbursement to Insurance Company
State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate
Issue/Holding:
¶61 Fernandez says the court erred by ordering full restitution to two insurance companies because a court is authorized to do so only where justice requires. Fernandez says that justice does not require a man who washes dishes for a living to reimburse insurance companies worth billions of dollars.
Restitution – Ability to Pay not Limited by Length of Sentence or Probation
State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate
Issue: Whether the holding of State v. Mark M. Loutsch, 2003 WI App 16, ¶25, “that the court order at sentencing an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence,” is valid.
Sentence Credit – Concurrent Sentences: Each Must Be Analyzed Separately for “Connection,” Though Imposed at the Same Time
State v. Elandis D. Johnson, 2009 WI 57, affirming 2008 WI App 34
For Johnson: Meredith J. Ross, UW Law School
Issue/Holding:
¶76 We conclude that Wis. Stat. § 973.155 imposes no requirement that credit applied toward one sentence also be applied toward a second sentence if the basis for applying the same credit to both sentences is merely that the sentences are concurrent and are imposed at the same time.
Restitution – “Victim” – Governmental Entity – School District
State v. Derick G. Vanbeek, 2009 WI App 37, PFR filed 3/13/09
For Vanbeek: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: On conviction for making a false bomb scare, § 947.015, Vanbeek is liable in restitution to the school district for salaries and benefits paid to teachers and staff during the resulting 4-hour evacuation, because the school district was a “direct victim” of the crime.
Restitution – Time Limit: No Explicit Deadline, Court May Consider After Sentencing
State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate
Issue/Holding:
¶52 The State counters that there is no language in the statute that requires victim claims to be submitted before sentencing. The State also argues that where restitution was held open, there is no expectation of finality and thus no equitable grounds for denying the claims.