On Point blog, page 84 of 95
Restitution — Law Enforcement Collateral Expenses
State v. James N. Storlie, 2002 WI App 163
For Storlie: William E. Schmaal, SPD, Madison Appellate
Issue: Whether the destruction of “stop sticks” caused by defendant’s flight from the police is properly subject to a restitution order.
Holding:
¶10…. (T)he government is entitled to restitution for losses incurred when it is a victim as a direct result of criminal conduct,
Waiver of Issue: Sentence – Failure to Object to Inaccurate Information
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: Reviewing court may address merits of attack on sentence based on inaccurate information, notwithstanding absence of contemporaneous objection. ¶25. It is appropriate here for the court to overlook waiver, where the state concedes that it can’t support the information now challenged; and defendant’s postconviction motion showed that information was inaccurate and also established a basis for believing that he didn’t have an adequate opportunity to refute the information.
Restitution – Special Damages – “Loss of Use” – Rental Fees
State v. Joseph A. Kayon, 2002 WI App 178
For Kayon: Ronald J. Sonderhouse
Issue/Holding: Both the replacement cost of a television stolen by the defendant, and rental fees of a television while the case was pending, may be recovered in restitution. The rental fees represent “loss of use” damage that could be claimed in a civil action and therefore qualify as a special damage.
(T)he standard to be applied to such recovery is that of reasonableness under all the circumstances of the particular case.
Restitution – Special Damages – Time Spent by Victim’s Salaried Employee Investigating Offense
State v. William A. Rouse, 2002 WI App 107, PFR filed 5/8/02
For Rouse: Morris D. Berman
Issue/Holding: Time spent by a bank’s salaried employees investigating the crime (forgery) is subject to restitution because,
while the bank’s employees were investigating Rouse’s forgeries, they were prevented from doing other work for the bank, and thus the bank lost all value of their services during that time.
Review — Resentencing — Correction of Unlawful Sentence — Double Jeopardy — Increase in Original Sentence
State v. Timothy J. Helm, 2002 WI App 154, PFR filed 6/11/02
Issue: Whether resentencing, to correct an illegal sentence, violated double jeopardy because it resulted in an increase in the original sentence.
Holding: On sentence after revocation, the trial court reimposed probation on one of the counts; this was an unauthorized disposition which the trial court properly corrected by subsequently resentencing to an active term of imprisonment on that count.
Re-Sentencing — Multiple Counts, Challenge to One Count
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: ¶39 n. 1:
Groth was sentenced on all three counts at the same hearing and, therefore, the court’s determination of his sentence on any of the counts may well have affected its determination and structuring of his sentences on all three.
Modification — New Factor — Rehabilitation — Truth-in-Sentencing
State v. Dawn M. Champion, 2002 WI App 267, PFR filed 12/2/02
For Champion: Patricia L. Arreazola
Issue: Whether the defendant’s early completion of all available rehabilitation programs is a new factor justifying reduction of the confinement portion of her sentence.
Holding:
¶13. Our review of the legislative history of 1997 Wis. Act 283 demonstrates that the legislature intended something inconsistent with Champion’s proposal.
Sentence Modification — New Factor — Defendant’s “New-Found Realization” of Past Victimization
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding: Defendant’s new-found realization that his behavior was caused by childhood sexual exploitation isn’t a new factor justifying sentence reduction: “¶25 … Just as a new expert opinion based on previously known or knowable facts is nothing more than the newly discovered importance of existing evidence … not newly discovered evidence for purposes of plea withdrawal,
Modification — New Factor: Reversal of Conviction in Another Case
State v. Kelley L. Hauk, 2002 WI App 226
For Hauk: David D. Cook
Issue/Holding: Reversal of defendant’s conviction in another case is new factor (where remaining, valid sentence was concurrent to vacated sentence) upon which trial court may, but is not required, to reduce sentence.
Sentence Modification — Procedure — Notice to State
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding: The trial court erred in granting a motion to modify sentence without either seeking the state’s response or holding a hearing. Procedure on motion to modify sentence is similar to that for a post-conviction motion under § 974.06(3) — if the motion is obviously non-meritorious, the trial court should deny it outright;