On Point blog, page 66 of 96
Due Process – Judicial Vindictiveness – Resentencing (Following Successful Attack on Conviction), Generally
State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding:
¶8 Due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969),
Sentencing – Boot Camp (CIP), Generally
State v. Jeremy D. Schladweiler, 2009 WI App 177
Pro se
Issue/Holding:
¶9 Commonly referred to as “boot camp,” the CIP is governed by Wis. Stat. § 302.045, which provides that “the [DOC] shall provide a challenge incarceration program for inmates selected to participate” after meeting the eligibility requirements for the program. Sec. 302.045(1). …
¶10 Once the trial court has made an eligibility determination,
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.
Enhancers — § 939.632, School Zone — Constitutionality
State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29
For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner
Issue/Holding:
¶81 We conclude that the school zone penalty enhancer is not unconstitutional as applied to Quintana. The legislature has sought to increase the penalty for those who commit violent crimes within 1,000 feet of “school premises.”
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,
Sentencing Review – Factors – Proof of (Other Offenses)
State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm
Issue/Holding: The sentencing court may consider uncharged and unproven offenses, ¶36; id n. 20:
State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341. See also State v. McQuay , 154 Wis. 2d 116,
Restitution – Limitations – “Gifted Funds” in Prisoner’s Account as Source
State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper
Issue: Whether the sentencing court may order that DOC distribute “gifted” (as opposed to wage-based) funds in a prisoner’s account to satisfy a restitution obligation.
Holding:
¶12 We observe that Wis. Stat. § 973.20 does not limit the consideration of a defendant’s ability to pay out of funds derived from only earnings or wages.
Restitution – Limitations – Time Limit / Double Jeopardy
State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper
Issue/Holding: Restitution order amendment, directing DOC to disburse funds from the prisoner’s account, did not violate double jeopardy although the amendment occurred three years after the original order:
¶16 Greene’s double jeopardy argument focuses on the fact that DOC, in applying the original restitution order, did not distribute funds from his accounts to pay restitution in the three years prior to the entry of the amended restitution order.
Restitution – “Victim”: Obligor of Bail Forfeited by Defendant’s Violation of Bond Condition
State v. William Agosto, 2008 WI App 149, PFR filed 10/21/08
For Agosto: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue/Holding: The defendant’s mother, who posted subsequently-forfeited cash bail, is a “victim” for restitution purposes:
¶8 …
- Agosto committed the “crime” of bail-jumping. He pled guilty and the circuit court entered a judgment convicting him of that crime.
- As a result of that crime,
Restitution — Law Enforcement Officer Not “Victim,” § 973.20(1r) re: Injuries Suffered While Apprehending Defendant
State v. Anthony Houston Lee, 2008 WI App 185
For Lee: Carl W. Chessir
Issue/Holding:
¶11 As noted, Wis. Stat. § 973.20 authorizes a trial court to order restitution to victims of a “[c]rime considered at sentencing,” which includes “any crime for which the defendant was convicted and any read-in crime.” Sec. 973.20(1g)(a) & (1r). We conclude that this language is clear and unambiguous, and that it requires us to reverse the restitution order.