On Point blog, page 88 of 95
Restitution — Limitations — Ordering Payments Withheld from Prison Wages
State v. Troy B. Baker, 2001 WI App 100, 243 Wis. 2d 77, 626 N.W.2d 862
Issue: Whether the trial court had authority to order that restitution be withheld from prison wages.
Holding: Because a restitution order contained in a judgment of conviction is an “obligation reduced to judgment,” a trial court has authority under § 303.01(8)(b) to order disbursement of restitution from prison wages. ¶17.
Restitution — “Victim” — “Family Member” — Mother, Aunt
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether, on a conviction for homicide of a child, the child’s mother and aunt could be considered victims within the meaning of § 973.20(1r) so as to support restitution for their counseling costs.
Holding: “Victim” in § 973.20(1r) is assigned the meaning of “victim”
Restitution — “Victim” — County Department of Human Services
State v. Troy B. Baker, 2001 WI App 100, 243 Wis. 2d 77, 626 N.W.2d 862
For Baker: William E. Schmaal, SPD, Madison Appellate
Issue: Whether the county DHS, which paid out testing expenses for a sexual assault victim, may be considered for restitution purposes an “insurer, surety or other person who has compensated [the] victim.”
Holding: Because § 973.20(5)(d) permits restitution to a third party,
Restitution — “Victim” — Governmental Entity — Overtime Police Costs
State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate
Issue: Whether restitution may be ordered under § 973.20 for overtime police costs.
Holding:
¶20. The collective effect of Schmaling and Howard-Hastings is the following. A governmental entity can, in the appropriate case, be a victim entitled to restitution. (Howard-Hastings).
Sentencing Review — Waiver of Objection to Reliance on Information
State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565, affirmed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak
Issue: Whether the defendant waived objection to the sentencing court’s reliance on information sealed from the defendant’s inspection.
Holding:
¶42 We accept the State’s waiver argument. First, just because the trial court was in its “imposing sentence”
Sentence Modification — New Factor — Post-Sentencing Revocation — Linkage to Intended Drug Treatment
State v. Steve Norton, 2001 WI App 245
For Norton: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether an unanticipated, post-sentencing revocation amounted to a new factor justifying modification of sentence.
Holding:
¶10. Although we agree with the State that, in general, revocation of probation in another case does not ordinarily present a new factor, the specific facts involved in this case require an exception to the general rule.
Sentence Modification — New Factor — Lesser Culpability — Not “Unknowingly Overlooked”
State v. Andre D. Crockett, 2001 WI App 235, PFR filed
For Crockett: David D. Cook
Issue:Whether facts suggesting that the defendant might have been less culpable than his codefendants amounted to a new factor justifying modification of sentence.
Holding: A new factor may be relate to facts “unknowingly overlooked” at sentencing; here, although the asserted new factor may have been unknowingly overlooked by the sentencing court,
Sentence Modification — New Factor — Escalona-Naranjo Bar to Raising
State v. John Casteel, 2001 WI App 188, PFR filed
Issue: Whether Casteel’s failure to argue in a prior new-factor based attempt to modify sentence bars him from now arguing that the special action release program, § 304.02 — a statute extant at the time of the prior motion to modify — is a new factor.
Holding:
¶17. We note that the special action parole release statute was first adopted in 1989.
Sentence Modification — New Factor: Transfer to out-of-state Prison
State v. Anthony A. Parker, 2001 WI App 111
Issue: Whether transfer to an out-of-state prison was a new factor supporting sentence modification.
Holding:
¶11. Parker contends that his transfer out of state is a new factor that frustrates the purpose of his sentence because his placement no longer coincides with the judgment of conviction confining him to ‘Wisconsin state prisons.’ Parker’s reliance upon these words is excessively literal and finds no support in the case law.
Sentencing – Factors – Exercising Right to Trial/Evaluation of Defendant’s Testimony
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether the sentencing court punished the defendant for going to trial and by stressing the perceived falsity of the theory of defense.
Holding:
¶66. We do not agree with Gribble’s claim that the trial court was punishing him for “defense counsel’s lawful efforts to support the defendant’s claim of innocence.”