On Point blog, page 77 of 96
Sentence Credit – SVP (Ch. 980) Custody
State ex rel. Michael J. Thorson v. Schwarz, 2004 WI 96, reconsideration denied, 2004 133, affirming unpublished decision of court of appeals
For Thorson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Time spent in detention during ch. 980 proceedings may not be credited toward service of the underlying criminal sentence. ¶¶29-38.
Thorson was serving a sentence for a 980-qualifying offense,
Generally, § 973.155 — “Custody” and “Escape”
State ex rel. Michael J. Thorson v. Schwarz, 2004 WI 96, reconsideration denied, 2004 WI 133, affirming unpublished decision of court of appeals
For Thorson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶16. The term “custody” is not defined in Wis. Stat. § 973.155. To fill this void, Wisconsin courts have relied upon the definition set forth in Wis.
Presentence Report — Enhanced Need for, under TIS
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding:
¶31. Likewise, we agree with the Criminal Penalties Study Committee that the judiciary must address the increased responsibility placed upon the sentencing court in light of truth-in-sentencing.
Sentence Modification — New Factor — TIS-I: Elimination of Parole
State v. James D. Crochiere, 2004 WI 78, affirming unpublished opinion
For Crochiere: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether post-sentencing events such as rehabilitation which would not be considered “new factors” supporting reduction of indeterminate sentence may be regarded as new factors under the determinate regime of TIS-I.
Holding:
¶9. Crochiere bases his argument for sentence reduction, in part, on this shift away from the executive branch’s participation due to the legislature’s elimination of parole.
Sentencing – Factors – Victim’s Good Character
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding:
¶63. Gallion’s next claim on appeal is that the circuit court erred in placing undue emphasis on the character of the victim. …¶64. Under Wisconsin law,
Sentencing Review – Factors – TIS
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding:
¶28. With the advent of truth-in-sentencing, we recognize a greater need to articulate on the record the reasons for the particular sentence imposed. Under the old,
Enhancer — TIS-I – Calculation (Confinement vs. Supervision)
State v. Michael D. Jackson, 2004 WI 29, affirming unpublished decision of court of appeals
For Jackson: Joseph E. Schubert
Issue: Whether penalty enhancement of a TIS-I sentence, § 973.01(2) (1997-98), applies to the confinement portion alone, or to the total term of imprisonment (including extended supervision), of a bifurcated sentence.
Holding:
¶17. The key to understanding the applicability of penalty enhancers under TIS-I lies in Wis.
Restitution — Limitations — Causation and Special Damages
State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶13. Restitution awarded under Wis. Stat. § 973.20(5)(a) is limited in two ways relevant to our present analysis. First, before a trial court may order restitution “there must be a showing that the defendant’s criminal activity was a substantial factor in causing” pecuniary injury to the victim.
Restitution — Defenses — Set-Off
State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether the defendant was entitled to set-off as a defense to restitution for theft by (home improvement) contractor, for work that was paid for by the contractor to a subcontractor.
Holding:
¶18. We conclude that the trial court erroneously exercised its discretion by not allowing any offset whatsoever for Longmire’s undisputed expenditure of a portion of the deposit money in compliance with his contractual obligations.
Restitution – Special Damages — Attorney’s Fees of Victims to Enforce Contract in Theft by Contractor Case
State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether attorney fees, incurred by the victims in seeking damages under the contract underlying this theft by contractor case, are subject to restitution.
Holding:
¶29. Longmire contends the trial court erred because the “American Rule” requires litigants in a civil action to bear their own litigation costs,