On Point blog, page 96 of 97
Enhancer — § 161.48(2) (1993-94), Drug Offender — Second or Subsequent Offense
State v. Frank Miles, 221 Wis. 2d 56, 584 N.W.2d 703 (Ct. App. 1998)
For Miles: Craig W. Albee
Issue/Holding: Prior drug conviction is not element of crime of second or subsequent drug offense, § 161.48(2) (1993-94), which elevates what would otherwise be misdemeanor to felony possession:
Miles fails to recognize the distinction between the two types of penalty enhancers. The first type of penalty enhancer concerns facts or circumstances related to the underlying crime which alter the substantive nature of the charged offense.
Enhancers — § 961.49, Youth Center
Debra L. Van Riper, 222 Wis. 2d 197, 586 N.W.2d 198 (Ct. App. 1998)
For Van Riper: Megan L. DeVore
Issue/Holding:
Because day care centers provide recreational and social services activities for children, they are a subset of “youth centers” and come within the definition of places listed in § 961.49(2), Stats. The protection of children, who congregate at day care centers, and are very vulnerable to the dangers associated with drug trafficking,
Enhancer — Persistent Repeater, § 939.62(2m)(b) — Equal Protection Challenge
State v. Damone J. Block, 222 Wis. 2d 586, 587 N.W.2d 914 (Ct. App. 1998)
For Block: James M. Weber
Issue/Holding: The persistent repeater scheme survives equal protection challenge.
Block concedes that the persistent repeater statute deserves only the rational basis test. He argues that there are no reasonable or practical grounds for the manner in which the legislature has chosen serious crimes under § 939.62(2m),
Presentence Report – Conflict of Interest – Author Married to Defendant’s Prosecutor — Showing Actual Bias not Required – Remedy (Strike PSI) / Harm (Must Show Unfair Influence over Sentencing Process)
State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate
Issue/Holding:
Requiring any defendant to demonstrate that the marital relationship actually influenced the writer’s impressions and recommendations would present an insurmountable hurdle to any defendant attempting to challenge a PSI. The reasons for an agent’s impression may operate at a subjective level of which the report’s author is unaware.
Presentence Report — Role in Sentencing — In General
State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate
Issue/Holding:
Our supreme court has acknowledged the importance of the PSI to the sentencing process. See State v. McQuay, 154 Wis.2d 116, 130-31, 452 N.W.2d 377, 383 (1990). The integrity of the sentencing process demands that the report be accurate,
Presentence Report — Bias, Demonstration of — Defendant’s Homosexuality
State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate
Issue/Holding:
Suchocki claims that his due process right to a fair sentencing hearing was violated. Accordingly, he must demonstrate both bias in the PSI writer and that the sentencing process was prejudiced by such bias. See State v. Coulthard,
Presentence Report — Use / Challenge to Factual Accuracy
State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate
Issue/Holding:
The use of a PSI is a matter within the court’s discretion. The court has discretion to order a PSI and to determine the extent to which it will rely upon the information in the PSI. State v. Skaff,
Consecutive Sentences — No Authority to Impose, Relative to Jail Time as Condition of Probation in Another Case — Remedy of Resentencing
State v. Daron E. Maron, 214 Wis. 2d 384, 571 N.W.2d 454 (Ct. App. 1997)
For Maron: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding1:
… We conclude that § 973.15(2), Stats., does not give the trial court authority to order that the sentence be served consecutive to jail time already being served as a condition of probation. …
…
Subsequent amendment to § 973.15,
Restitution — Limitations — Bail-Bond Disbursement
William Olson v. Kaprelian, 202 Wis. 2d 377, 550 N.W.2d 712 (Ct. App. 1996)
For Olson: Terry W. Rose
Issue: Whether bail posted under a bond in a seprate criminal case may be forfeited in order to satisfy a restitution obligation.
Holding:
In regards to this jurisdictional question, Olson … argues that a trial court has no jurisdiction to simply issue an order that assigns funds directly from a bond to the crime victim.We agree and thus hold that the trial court’s order is void as a matter of law.
Restitution — Defenses — Civil Settlement (Setoff)
William Olson v. Kaprelian, 202 Wis. 2d 377, 550 N.W.2d 712 (Ct. App. 1996)
For Olson: Terry W. Rose
Issue/Holding:
The statutory section governing restitution allows a defendant to reduce civil damages awarded to the crime victim by amounts paid pursuant to a restitution order. See § 973.20(8), Stats. We read this statute to likewise enable a defendant to try to reduce the amount he or she owes because of a restitution award during settlement negotiations on the companion civil case.