On Point: 36. Sentencing

State v. Richard D. Yakes, 226 Wis.2d 425, 595 N.W.2d 108 (Ct. App. 1999)

Holding: Defendant’s adultery, failure to pay child support, and status as a bankrupt “were all appropriate factors relating to Yakes’ character and personal history.”

State v. David J. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999)
For Gardner: Steven P. Weiss, SPD, Madison Appellate

Gardner’s 30-year sentence is upheld as a proper exercise of discretion.

State v. Tommy Lo, 228 Wis. 2d 531, 599 N.W.2d 659 (Ct. App. 1999)
For Lo: Margarita Van Nuland

Issue/Holding: “When there is a conflict between the court’s oral pronouncement of sentence and a written judgment of conviction, the oral pronouncement controls.”

State v. Tyrone Price, 231 Wis.2d 229, 604 N.W.2d 898 (Ct. App. 1999)
For Price: James L. Fullin, Jr., SPD, Madison Appellate.

Issue: Whether confinement time spent on parole holds qualifies as “actual confinement serving a criminal sentence” thereby extending the five-year period for a prior, qualifying sentence-enhancement conviction under § 939.62(2).

Holding: Time spent under parole hold qualifies as time spent under a criminal sentence within the meaning of the repeater act:

¶13 Since the expansion of the five-year period is at issue in this case,

State v. John J. Thoms, 228 Wis. 2d 868, 599 N.W.2d 84 (Ct. App. 1999)
For Thoms: Steven L. Miller

Issue/Holding: The court reverses a persistent repeater sentence, § 939.62(2m). Thoms was originally charged in the complaint with the standard 10-year sentence enhancement, § 939.62(1)(c)&(2), based on a prior felony theft conviction. However, the information changed the enhancement allegation to persistent offender, § 939.62(2m) – life without parole.

State v. Dawn C. Moline, 229 Wis. 2d 38, 598 N.W.2d 929 (Ct. App. 1999)
For Moline: Patrick M. Donnelly, SPD, Madison Appellate.

Issue/Holding:

By this decision, we hold that a prior conviction for possessing drug paraphernalia pursuant to § 961.573, STATS., qualifies as a prior offense under the repeat drug offender statute, § 961.48(3), STATS. … The statute is meant to include all prior convictions,

State v. Lisa A. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999)
For Carter: Paul G. LaZotte.

Issue/Holding: The jail assessment in §§ 302.46(1) & 814.60(2)(ag) is contingent on imposition of a fine or forfeiture.

Section 814.60(2)(ag), STATS., provides that “[i]n addition to any fine imposed, a defendant shall be required to pay any … [j]ail assessment imposed by s. 302.46(1).”  Section 302.46(1), 

State v. Daniel E. Rohe, 230 Wis.2d 294, 602 N.W.2d 125 (Ct. App. 1999)
For Rohe: Charles B. Vetzner, SPD, Madison Appellate.

Issue: Whether costs for a sexual assault examination were properly taxable, where the examination neither produced any results nor was used at trial.

Holding: Because the examination was part of the state’s investigation and prosecution; and because the examiners were on the state’s witness list,

State v. Lisa A. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999)
For Carter: Paul G. LaZotte

Issue/Holding: The $20 fee for the clerk of court under § 814.60(1) is allocated on a per-count, rather than per-case, basis.

State v. James C. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996)
For Lindsey: Park M. Drescher

Issue/Holding:

It is undisputed that the trial court at the sentencing hearing erred when it did not afford Lindsey the right of allocution provided by § 972.14(2), Stats. …First, we conclude that because § 972.14(2), Stats., clearly establishes a statutory right of allocution and because the trial court did not follow the mandate of § 972.14(2),