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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.
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OWI — Implied Consent, Driver’s Request for Additional Test, § 343.305 (5)(a), Made After Release From Custody – Timeliness
State v. Patrick J. Fahey, 2005 WI App 171 Issue: Whether requested alternative testing at agency expense is deemed a “request” within § 343.305(5)(a) where made after driver was released from custody, left police department, and then returned about 15 minutes later, ¶7. Holding: ¶14 … The State, in keeping with the circuit court’s decision, argues […]
Enhancer — TIS-I
State v. Kent Kleven, 2005 WI App 66 For Kleven: Roberta A. Heckes Issue/Holding: Where sentencing includes multiple enhancers, the court may identify the amount of confinement attributable to each enhancer, without violating the rule that an enhancer doesn’t support a separate sentence. ¶¶16-18. (The court adds, however, ¶18 n. 4, that the “better practice” is to […]
Due Process – Sex Offender Registration Juvenile – Constitutionality
State v. Jeremy P., 2005 WI App 13 For Jeremy P.: Adam B. Stephens Issue/Holding: Because mandatory sex offender registration for certain juvenile offenders, §§ 938.34(15m)(bm) and 301.45(1m), is not punishment it does not violate procedural due process, ¶¶8-15. The court’s retention of discretion in administering registration defeats a substantive due process claim, ¶22. An equal protection […]
Enhancer — Allocation
State v. Kent Kleven, 2005 WI App 66 For Kleven: Roberta A. Heckes Issue/Holding: ¶14. We conclude that, provided the sentence imposed exceeds the maximum term of imprisonment established for the base offense, a court’s remarks attributing a portion of the sentence to an applicable enhancer does not constitute grounds to vacate that portion of […]
OWI – Penalty Provision – Enhancement – Proof (and Apprendi)
State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05 For Matke: James B. Connell Issue/Holding: ¶16. Matke also contends that the trial court’s interpretation of Wis. Stat. § 346.65(2), which is now ours as well, violates due process because it permits the court to sentence him for a sixth OMVWI without requiring the State to […]
Costs — Bail, as Satisfaction
State v. Ryan E. Baker, 2005 WI App 45, PFR filed 3/17/05 For Baker: William E. Schmaal, SPD, Madison Appellate Issue/Holding: The plain text of § 969.02(6) mandates that bail money be used to satisfy court costs, with no room for discretionary return to the depositor rather than payment of costs. ¶¶7-9. This is a misdemeanor, but the relevant […]
Terry Frisk – Scope, “Effective” Patdown: Inconclusive Result as Supporting Further Intrusion
State v. Martin D. Triplett, 2005 WI App 255 For Triplett: Syovata Edari, SPD, Milwaukee Appellate / Milwaukee Trial Issue: Whether the officer’s inability to perform an “effective” patdown permitted a further intrusion that led to the discovery of contraband. Holding: ¶12 Our supreme court has not, however, addressed the scope of a permissibleTerry search where an […]
Earned Release Program (“ERP”) — Exercise of Discretion to Determine Eligibility
State v. James L. Montroy, 2005 WI App 230 For Montroy: Jay E. Heit; Stephanie L. Finn Issue/Holding: The sentencing court properly exercised discretion in denying eligibility for Earned Release, § 302.05(3), despite misperceiving at one point that defendant was statutorily ineligible: ¶17 … [A]t the December 6, 2004, [postconviction] hearing … [t]he court stated: Well, […]
Warrants – Good-faith Exception – “Significant Investigation” Requirement of Eason
State v. Bill P. Marquardt, 2005 WI 157, on certification; prior history: 2001 WI App 219 For Marquardt: John Brinckman; Patricia A. Fitzgerald Issue/Holding: The “significant investigation” requirement of State v. Eason, 2001 WI 98 is satisfied: ¶52 Investigator Price estimated that over the course of March 13 and 14, a total of 20 law enforcement officers had become […]
Search Warrants – Probable Cause – Right to Challenge Credibility of Informant
State v. Sheldon C. Stank, 2005 WI App 236 For Stank: Dennis P. Coffey Issue: Whether Stank was entitled to an evidentiary hearing, relative to the credibility of the informant, in support of his attack on probable cause for the search warrant. Holding: ¶30 We hold that Stank was not entitled to such a hearing. In Morales […]
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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.