On Point: 36. Sentencing

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. 

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.

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,

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether expenditures by victims to correct shoddy work done by defendant in theft by contractor case may be subject to restitution.

Holding:

¶23. We conclude that these costs, incurred by the homeowners and admittedly arising out of their dealings with Longmire, are not recoverable as a separate item of restitution under Wis.

State v. Victor Naydihor, 2004 WI 43, affirming 2002 WI App 272, 258 Wis. 2d 746, 654 N.W.2d 479
For Naydihor: Philip J. Brehm

Issue1: Whether an increase in sentence (from 3 to 5 years’ initial confinement), after resentencing before a different judge due to a plea bargain violation, was presumptively vindictive and therefore violated due process.

Holding1: Under the circumstances,

State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler

Issue/Holding: ¶5, n. 2: “Technically, Stenzel is seeking a modification of a sentence imposed by an erroneous exercise of discretion; resentencing is only available if the initial sentence is vacated because it was illegally imposed. State v. Carter, 208 Wis. 2d 142, 146-47, 560 N.W.2d 256 (1997).”

Well,

State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: Where the term of initial confinement exceeds the permissible maximum, based on the rule that this term may not exceed 75% of the total sentence, the error is not harmless even though the term is less than the maximum that could have been imposed had the maximum sentence been given;

State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Because the “presentence investigation was not part of the accusatory stage of a criminal proceeding”; and because the PSR “interview was routine and was not conducted while Jimmie’s jeopardy was still in doubt, Jimmie, “unlike the defendant in Estelle,

State v. Bart C. Gruetzmacher, 2004 WI 55, on certification
For Gruetzamacher: Jennelle London Joset

Issue/Holding:

¶14. We now decide whether circuit courts should be allowed to correct obvious errors in sentencing where it is clear that a good faith mistake was made in an initial sentencing pronouncement, where the court promptly recognizes the error, and where the court, by reducing an erroneous original sentence on one count and increasing the original sentence on another,

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶47. Finally, we acknowledge (and the State does not dispute) that the amount of restitution the court ordered Longmire to pay played a significant role in the court’s determination of the length of extended supervision it ordered. We have directed that the restitution amount be reduced from $34,985 to $27,252.