On Point blog, page 79 of 95
Enhancer — TIS-I – Calculation (Unclassified Felony)
State v. Michael D. Jackson, 2004 WI 29, affirming unpublished decision of court of appeals
For Jackson: Joseph E. Schubert
Issue/Holding:
¶42 Applying the rule of lenity, we conclude that Wis. Stat. § 973.01(2)(b)6 should be read together with Wis. Stat. § 973.01(2)(c) in calculation of the maximum term of confinement for unclassified felonies with penalty enhancers under TIS-I. We apply the 75% rule of Wis.
Enhancers, § 939.62(2m)(b)2 – Not Cruel and Unusual Punishment
State v. Michael D. Lewis, 2004 WI App 211
For Lewis: Timothy A. Provis
Issue/Holding: Sentence of life imprisonment without possibility of parole, as persistent repeater due to prior conviction for sexual assault of a child, on a current conviction for child enticement isn’t cruel / unusual punishment under the 8th amendment. ¶¶16-18.
DNA Collection, § 973.047, and Surcharge, § 973.046 — Prior Collection
State v. Franciollo L. Jones, 2004 WI App 212, PFR filed 11/11/04
For Jones: Syovata Edari; Ellen Henak (on PFR), SPD, Milwaukee Appellate
Issue: Whether the trial court properly ordered Jones to pay a DNA surcharge even though he had already provided a DNA sample in an earlier case.
Holding:
¶5 WISCONSIN STAT. § 973.047 obligates the trial court to require anyone convicted of a felony to provide a DNA specimen.
Enhancer — § 940.03, Felony-Murder (1999-2000)
State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: The felony murder statute, § 940.03 (1999-2000), contains characteristics suggestive of both penalty enhancers (it adds a specified term to the maximum penalty applicable to the underlying crime), ¶15, and also substantive offenses (it is located in a chapter that defines substantive offenses; and it incorporates the elements of offenses located elsewhere),
Earned Release Program (“ERP”), § 973.01(3) — Trial Court’s Authority to Determine When as Well as Whether Defendant Is Eligible — Identity of “CIP” Purpose
State v. Miyosha White, 2004 WI App 237, PFR filed 12/1/04
For White: Leonard Kachinsky
Issue/Holding: A sentencing court exercising discretion on eligibility for the earned release program, § 973.01(3g), has authority to determine not only whether but also when the defendant is eligible for the program. The language and purpose of the earned release statute is “almost identical” to the “boot camp” statute, § 973.01(3m),
Challenge Incarceration Program (“Boot Camp”) – §§ 973.01(3m), 302.045 – Authority to Impose Waiting Period for Entry
State v. David A. Lehman, 2004 WI App 59, PFR filed 3/4/04
For Lehman: Leonard D. Kachinsky
Issue/Holding: Sentencing court may impose 4-year waiting period for entry into Challenge Incarceration Program (“boot camp”), §§ 302.045, 973.01(3m):
¶17. The intent of the legislature is therefore advanced by an interpretation of Wis. Stat. § 973.01(3m) that allows a sentencing court to determine not only whether a defendant is eligible for the CIP,
§ 940.03, Felony-Murder (1999-2000) — Stand-Alone, Unclassified Crime Not Penalty Enhancer
State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: The felony murder statute, § 940.03 (1999-2000), contains characteristics suggestive of both penalty enhancers (it adds a specified term to the maximum penalty applicable to the underlying crime), ¶15, and also substantive offenses (it is located in a chapter that defines substantive offenses; and it incorporates the elements of offenses located elsewhere),
Guilty Pleas – Plea Bargains – Breach: By Prosecutor – End-Run (“Negative Allocution”)
State v. Rudolph L. Jackson, 2004 WI App 132, PFR filed 6/15/04
For Jackson: Andrea Cornwall, SPD, Milwaukee Appellate
Issue: Whether the prosecutor violated an agreement not to make a specific sentencing recommendation by expressing outrage at recommendations proffered on Jackson’s behalf and by urging the court to take into account the deterrent effect of its sentence.
Holding:
¶14. Jackson contends that the prosecutor breached the plea negotiation as his statements constituted an “end-run”
Resentencing — Increase in Original Sentence After Appellate Relief
State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90
For Church: James L. Fullin, SPD, Madison Appellate
Issue: Whether an increase in sentence on re-sentencing violated due process,
Presumptive Minimum – Truth-in-Sentencing
State v. Tommie L. Cole, 2003 WI 59, on certification
For Cole: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding:
¶9. The court of appeals asks that we determine what combination of confinement in prison and extended supervision constitutes the presumptive minimum sentence when a statute provides that an offender “shall be imprisoned for not less than 3 years.”10 In other words,