On Point blog, page 92 of 96
Enhancer — § 939.62(2m)(d), Persistent Offender — Life Without Parole — Cruel and Unusual Punishment
State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, on certification; clarified on reconsideration, on a different point, 2001 WI 6
For Hahn: Steven G. Bauer
Issue: “(W)hether the persistent repeater penalty enhancer as applied to the defendant violates the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment.” ¶5.
Holding: Imposing a life sentence without possibility of parole,
Enhancer — § 941.29(2m), 2nd-Offense Felon in Possession, Supports Repeater
State v. Calvin E. Gibson, 2000 WI App 207, 238 Wis.2d 547, 618 N.W.2d 248
For Gibson: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶1. The question presented is whether the habitual criminality enhancer may be applied to a conviction for a second offense felony of firearm possession. Calvin E. Gibson, who was convicted of being a felon in possession of a firearm, second offense,
Enhancer — § 939.63, Dangerous Weapon Enhancer — Nexus to Predicate Offense
State v. John W. Page, 2000 WI App 267, 240 Wis.2d 276, 622 N.W.2d 285
For Page: William E. Schmaal, SPD, Madison Appellate
Issue: Whether possession of dangerous weapon enhancer, § 939.63, requires actual use or threat to use the weapon while committing the enhanced offense.
Holding:
Under the correct reading of [State v.] Peete [,185 Wis.
Enhancers — Collateral Attack on, as Part of Sentencing Proceeding
State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, clarified on reconsideration, 2001 WI 6, on certification
For Hahn: Steven G. Bauer
Issue: “(W)hether the U.S. Constitution requires that an offender be permitted during an enhanced sentence proceeding predicated on a prior conviction to challenge the prior conviction as unconstitutional because the conviction was allegedly based on a guilty plea that was not knowing,
Enhancers – Jail as Condition of Probation Tolling Time Limit for Repeater
State v. Todd E. Crider, 2000 WI App 84, 234 Wis. 2d 195, 610 N.W.2d 198
For Crider: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether jail time spent as a condition of probation qualifies as “actual confinement serving a criminal sentence,” so as to extend the § 939.62(2) 5-year period within which a prior conviction must fall to support a repeater enhancement.
Holding: Though time served as a condition of probation is generally not a “sentence,”
Consecutive Sentences – Sentence Consecutive to Future Revocation
State v. James E. Cole, 2000 WI App 52, 233 Wis. 2d 577, 608 N.W.2d 432
Issue: Whether a sentence can be ordered to run “consecutive to revocation” when the defendant’s parole has not yet been revoked.
Holding: A court has authority, under Wis. Stat. § 973.15(2)(a), to make the current sentence consecutive to a revocation of parole, even though the revocation has not yet occurred.
Consecutive Sentences — Authority to Stay Sentence Until Release or Discharge on Ch. 980 Commitment
State v. David Carneal White, 2000 WI App 147, 237 Wis.2d 699, 615 N.W.2d 667
For White: Jeffrey A. Kingsley
Issue: Whether a court has authority to stay a sentence until the defendant is released or discharged from an otherwise unrelated Ch. 980 commitment.
Holding: The purposes of § 971.17 NGI and Ch. 980 SVP commitments being similar (¶¶8-9), the reasoning of State v.
Enhanced Penalties – Proof: Admission — Sufficiency Under § 973.12(1).
State v. David C. Liebnitz, 231 Wis.2d 272, 603 N.W.2d 208 (1999), on certification
For Liebnitz: Rex R. Anderegg.
Issue: Whether the defendant sufficiently admitted to an alleged repeater allegation so as to justify enhanced sentencing where, although he never disputed the allegation and in fact received the bargained-for sentence, he never distinctly admitted the repeater allegation.
Holding: Because the complaint and information both set forth the details of the repeater allegation along with the enhanced penalty;
Sentence credit – DIS confinement
State v. Timothy L. Olson, 226 Wis.2d 457, 595 N.W.2d 460 (Ct. App. 1999)
For Olson: Steven P. Weiss, SPD, Madison Appellate
Holding:
Timothy L. Olson appeals from an order denying a postconviction motion for relief. Olson seeks a 256-day sentence credit for the time he served in the Division of Intensive Sanctions (DIS) program before his probation was revoked and he was given a five-year prison sentence.
Sentence Credit – “course of conduct” – concurrent sentences imposed at different times
State v. Daniel C. Tuescher, 226 Wis.2d 465, 595 N.W.2d 443 (Ct. App. 1999)
For Tuescher: David D. Cook
Issue/Holding: Tusecher’s conviction on one count, out of several counts with concurrent sentences, was vacated for new trial. He continued to serve the remaining sentences, and was ultimately convicted and sentenced on a lesser offense on the vacated count. The court holds that Tuescher is not entitled to sentence credit on the resentenced count for time served between vacating and resentencing.