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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
Enhancer – § 939.62(2m)(d), Persistent Offender – “Prior” Strike
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue/Holding: The “3-strike” persistent repeater enhancement, § 939.62(2m)(d), requires that the two prior strikes occur before the current felony and the 1st strike’s conviction date precede the 2nd strike’s violation date. Although Long’s two prior strikes occurred before the current felony,
Due Process – Judicial Vindictiveness – Resentencing (Following Successful Attack on Conviction), Generally
State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding:
¶8 Due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969),
First Amendment (Freedom of Speech) – Applied to Identity Theft, § 943.201(2)(c): Regulation of Speech
State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn
Issue/Holding: First amendment analysis applies to an identity theft charge alleging that Baron sent emails from Fischer’s account without authorization and with intent to harm his reputation:
¶16 In order to determine if a First Amendment analysis is required, we must first consider whether conduct alone or speech,
Arrest Warrants – Entry, Defendant’s Residence
State v. Terion Lamar Robinson, 2009 WI App 97
For Robinson: Beth A. Eisendrath
Issue/Holding: Given the trial court finding that Robinson either lived or stayed at the apartment, the police were authorized to enter to effectuate his arrest under auspices of an arrest warrant:
¶16 In Blanco, the police, who had an arrest warrant for Blanco, entered an apartment where they believed Blanco was staying.
Sentencing – Boot Camp (CIP), Generally
State v. Jeremy D. Schladweiler, 2009 WI App 177
Pro se
Issue/Holding:
¶9 Commonly referred to as “boot camp,” the CIP is governed by Wis. Stat. § 302.045, which provides that “the [DOC] shall provide a challenge incarceration program for inmates selected to participate” after meeting the eligibility requirements for the program. Sec. 302.045(1). …
¶10 Once the trial court has made an eligibility determination,
Search Warrants – Probable Cause – Stalking
State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.
Issue/Holding: A search warrant for seizure of the sorts of items Sveum used or kept in connection with a 1996 stalking conviction established probable cause he was keeping such items in 2003:
¶35 The warrant affidavit stated that the affiant was a detective with twenty-two years of experience who had specialized training in stalking crimes.
Search Warrants – Probable Cause – Statements of Unnamed, Unwitting Participant in Transaction
State v. Jaime Romero, 2009 WI 32, reversing unpublished opinion
For Romero: Thomas E. Hayes
Issue/Holding: Search warrant affidavit, based in part on incriminatory statements of “unwitting” informant (“Mr. X”), established probable cause:
¶29 In the instant case a confidential informant told a law enforcement officer what someone else had told him. In such a case, the veracity of each person in the chain is relevant.
Search Warrants – Scope – Particularity Requirement
State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.
Issue/Holding:
¶40 Sveum’s particularity argument is that the many items authorized for seizure were so “non-specific” that the warrant was an invalid general warrant. Police were authorized to seize phone bills, journals, calendars, logs, computers and devices related to computers,
WESCL, §§ 968.31(2)(b) and (c) – GPS Device not Covered
State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.
Issue/Holding: The Wisconsin Electronic Surveillance Control Law excludes from coverage “(a)ny communication from a tracking device,” § 968.27(4)(d); a GPS device is such a “tracking device” and, therefore excluded from WESCL coverage.
Wisconsin Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) – One-Party Consent Exception, Generally
State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding:
¶8 The one-party consent exception reads as follows:
(2) It is not unlawful …:….
(b) For a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.