On Point blog, page 87 of 96
Enhancer — Judgment on Prior Entered After Commission of Enhanced Offense
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding: A guilty plea suffices to establish a qualifying repeater-enhancement, even though the judgment of conviction on that plea isn’t entered until after commission of the offense being enhanced. ¶¶9-14.
Enhanced Penalties — Proof — Admission: More Required
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding:
¶5 An admission from a defendant stating, “I am a repeater,” without more, is insufficient to constitute an admission of a prior conviction under WIS. STAT. §973.12(1). As the circuit court indicated in its colloquy, “repeater” and “habitual offender” are legal, not factual terms, and a defendant may not be aware of what he or she is admitting.
Enhancer — § 973.01(2)(c), Bifurcated Sentence — Application to Extended Supervision — Remedy
State v. Joseph F. Volk, 2002 WI App 274
For Volk: Charles B. Vetzner, SPD, Madison App
Issue: Whether the extended supervision portion of truth-in-sentencing, § 973.01, supports repeater enhancement, § 939.62(1)(b).
Holding: Because specifies that “confinement” may be enhanced, applying the principle that specification works an exclusion of non-enumerated items, the extended supervision portion of a sentence is not subject to repeater enhancement.
Double Jeopardy – Sentence: Defendant’s Fraud — No Expectation of Finality
State v. Ary L. Jones, 2002 WI App 208
For Jones: Arthur B. Nathan
Issue/Holding:
¶14. The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void and double jeopardy will not bar subsequent resentencing to place the defendant in the position he or she would have been in if the fraud or corruption had been exposed at the time of the original sentence.
Enhancer – § 939.62(2m)(d), Persistent Offender — Comparable Crime, Foreign Conviction – Determination
State v. Leonard T. Collins, 2002 WI App 177
For Collins: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding:
¶2. We agree with Collins that Wis. Stat. § 939.62(2m)(d) requires circuit courts to determine independently whether an out-of-state crime is comparable to a Wisconsin “serious felony,” even if the defendant admits that he or she is a persistent repeater. However, because we can conclude as a matter of law that “second degree murder”
Enhancers — § 939.62(2m), Persistent Offender — Comparable Crime, Foreign Conviction
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue/Holding: Burroughs’ prior conviction in Alabama for assault with intent to murder is sufficiently comparable to attempted first degree intentional homicide so as to support exposure to persistent offender sentencing, § 939.62(2m)(c). ¶¶23-27.
Enhancers — Applicability — Underlying Crime Required — Violation of Harassment Injunction (§ 813.125(4)) Subject to Enhancement
State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pitz
Issue/Holding: A repeater enhancement applies only to a crime, which is an offense prohibited by state law and punishable by fine and/or imprisonment. Violation of harassment injunction fits this definition and therefore supports repeater enhancement. State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct.
Enhancers — Collateral Attack on
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue: Whether the record sufficiently supports Burroughs’ guilty plea on a prior offense supporting his persistent offender status.
Holding: Because Burroughs doesn’t contest the fact that he was represented by counsel when he entered the plea to the prior offense, his right to challenge the plea is barred under State v.
Enhancers — Multiple Enhancers — Computation of Maximum
State v. Paul Delao Quiroz, 2002 WI App 52
For Quiroz: Chad G. Kerkman
Issue: Whether the maximum penalty for first-degree reckless endangerment of safety, enhanced by while armed and gang-related provisions, was 13 or 14 years.
Holding:
¶13 … [State v. Pernell, 165 Wis. 2d 651, 656, 478 N.W.2d 297 (Ct. App. 1991)] establishes that when two penalty enhancers are applicable to the same crime,
Costs — Travel Expense of State’s Witness
State v. Gary L. Gordon, 2002 WI App 53, reversed on other grounds, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: The trial court erroneously exercised discretion in imposing costs for the travel expense of an officer, in that this expense was necessitated by a change in trial date attributable primarily to the prosecution, not the defendant. ¶¶49-51.