On Point blog, page 3 of 4
Sentence — Modification (at State’s Behest) — New Factor: Defendant’s Economic Circumstance
State v. Frederick W. Prager, 2005 WI App 95
For Prager: Daniel P. Fay
Issue: Whether, six days after original sentencing and imposition of probation, the State’s proffered new factor (that defendant had quitclaimed the jointly owned farm to his wife) supported a modification to an active prison term.
Holding: Although the term of probation was premised in part on the economic hardship that defendant’s wife would suffer if he were sentenced to prison (¶¶4,
Resentencing — Increase in Original Sentence After Grant of Relief
State v. Victor Naydihor, 2004 WI 43, affirming 2002 WI App 272, 258 Wis. 2d 746, 654 N.W.2d 479
For Naydihor: Philip J. Brehm
Issue1: Whether an increase in sentence (from 3 to 5 years’ initial confinement), after resentencing before a different judge due to a plea bargain violation, was presumptively vindictive and therefore violated due process.
Holding1: Under the circumstances,
Resentencing — Modification, Distinguished From
State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler
Issue/Holding: ¶5, n. 2: “Technically, Stenzel is seeking a modification of a sentence imposed by an erroneous exercise of discretion; resentencing is only available if the initial sentence is vacated because it was illegally imposed. State v. Carter, 208 Wis. 2d 142, 146-47, 560 N.W.2d 256 (1997).”
Well,
Resentencing – Illegal Sentence: Maximum Term of Initial Confinement Exceeded
State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Where the term of initial confinement exceeds the permissible maximum, based on the rule that this term may not exceed 75% of the total sentence, the error is not harmless even though the term is less than the maximum that could have been imposed had the maximum sentence been given;
Resentencing — Correction of “Good Faith Mistake” by Sentencing Court
State v. Bart C. Gruetzmacher, 2004 WI 55, on certification
For Gruetzamacher: Jennelle London Joset
Issue/Holding:
¶14. We now decide whether circuit courts should be allowed to correct obvious errors in sentencing where it is clear that a good faith mistake was made in an initial sentencing pronouncement, where the court promptly recognizes the error, and where the court, by reducing an erroneous original sentence on one count and increasing the original sentence on another,
Resentencing — Increase in Original Sentence After Appellate Relief
State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90
For Church: James L. Fullin, SPD, Madison Appellate
Issue: Whether an increase in sentence on re-sentencing violated due process,
Resentencing — Defendant’s Right to Presence
State v. Rodney K. Stenseth, 2003 WI App 198, PFR filed 9/2/03
For Stenseth: Robert A. Ferg
Issue: Whether violation of the defendant’s right to be present at resentencing (occasioned by the original sentence exceeding the maximum allowable period of confinement) is subject to harmless error analysis.
Holding:
¶16. Wisconsin Stat. § 971.04(1)(g) provides that a defendant shall be present “[a]t the pronouncement of judgment and the imposition of sentence.”
Resentencing — after grant of partial relief
State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90
For Church: James L. Fullin, SPD, Madison Appellate
Issue: Whether resentencing is required on all remaining,
Review — Resentencing — Correction of Unlawful Sentence — Double Jeopardy — Increase in Original Sentence
State v. Timothy J. Helm, 2002 WI App 154, PFR filed 6/11/02
Issue: Whether resentencing, to correct an illegal sentence, violated double jeopardy because it resulted in an increase in the original sentence.
Holding: On sentence after revocation, the trial court reimposed probation on one of the counts; this was an unauthorized disposition which the trial court properly corrected by subsequently resentencing to an active term of imprisonment on that count.
Re-Sentencing — Multiple Counts, Challenge to One Count
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: ¶39 n. 1:
Groth was sentenced on all three counts at the same hearing and, therefore, the court’s determination of his sentence on any of the counts may well have affected its determination and structuring of his sentences on all three.