On Point blog, page 84 of 96
Sentence Credit – Electronic Monitoring
State ex rel. Willie C. Simpson v. Schwarz, 2002 WI App 7, PFR filed 1/11/02
Issue: Whether spent on electronic monitoring while on probation supports sentence credit following revocation.
Holding: Because the probationer could not have been charged with escape for leaving electronic monitoring, he isn’t entitled to sentence credit for the time he spent on electronic monitoring. ¶¶31-33.
Sentence credit – Delayed Report Date Due to Jail Overcrowding
State v. Anthony J. Dentici, Jr., 2002 WI App 77, PFR filed 2/5/02
For Dentici: Joseph E. Redding
Issue/Holding:
¶1 … Dentici claims that he is entitled to twenty-five days’ credit pursuant to State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), because, after being sentenced to sixty days at the House of Correction as a condition of probation,
Restitution – Discovery, § 973.20(14)(d)
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: Where restitution was for counseling expenses, Johnson failed to show good cause for discovery of her counseling records. ¶¶28-30.
Restitution — Limitations — Recharacterizing as Condition of Probation
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: Because record is clear that trial court ordered restitution, court of appeals refuses to recharacterize (and uphold) order as condition of probation:
¶25 As a final argument, the State contends that even if W.L.’s wages are not recoverable under WIS. STAT. § 973.20, the circuit court could have properly required repayment of the lost wages as a condition of probation under WIS.
Restitution – “Victim” — “Stepparent,” Wages, Lost Accompanying Victim to Court
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: Wages lost by a stepparent’s accompanying the victim to court aren’t subject to restitution; lost wages are limited to those persons identified in § 973.20(5)(b). ¶¶22-23.
Issue/Holding: A stepparent is not victim for § 973.20(1r) restitution purposes, ¶¶17-19. (However, a stepparent may qualify as an “other person,” under § 973.20(5)(d),
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.