Explore in-depth analysis
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.
Enhancers — § 939.62(2m), Persistent Offender — Comparable Crime, Foreign Conviction
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue/Holding: Burroughs’ prior conviction in Alabama for assault with intent to murder is sufficiently comparable to attempted first degree intentional homicide so as to support exposure to persistent offender sentencing, § 939.62(2m)(c). ¶¶23-27.
Due Process – Notice of Charge – Vague Charging Period
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: The charging period of March 1, 1989, to March 31, 1993, was not too expansive to provide opportunity to prepare a defense, largely because of the victim’s youthfulness and vulnerable relationship (patient-therapist) to defendant, ¶31; and because the alleged offenses occurred during therapy sessions,
Equal Protection – Differential, County-Based Sentencing Guidelines
State v. Roland Smart, 2002 WI App 240, PFR filed 9/24/02
For Smart: Donald T. Lang, SPD, Madison Appellate
Issue: Whether sentencing-guideline disparity for driving while intoxicated under guidelines adopted by local counties pursuant to § 346.65(2m) violates equal protection or due process.
Holding: Sentencing guideline disparities need be supported only by rational basis for equal protection purposes, as “(i)t is not a fundamental right to be free from deprivations of liberty as a result of arbitrary distinctions.”
Enhancers — Applicability — Underlying Crime Required — Violation of Harassment Injunction (§ 813.125(4)) Subject to Enhancement
State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pitz
Issue/Holding: A repeater enhancement applies only to a crime, which is an offense prohibited by state law and punishable by fine and/or imprisonment. Violation of harassment injunction fits this definition and therefore supports repeater enhancement. State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct.
Enhancers — Collateral Attack on
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue: Whether the record sufficiently supports Burroughs’ guilty plea on a prior offense supporting his persistent offender status.
Holding: Because Burroughs doesn’t contest the fact that he was represented by counsel when he entered the plea to the prior offense, his right to challenge the plea is barred under State v.
Enhancers — Multiple Enhancers — Computation of Maximum
State v. Paul Delao Quiroz, 2002 WI App 52
For Quiroz: Chad G. Kerkman
Issue: Whether the maximum penalty for first-degree reckless endangerment of safety, enhanced by while armed and gang-related provisions, was 13 or 14 years.
Holding:
¶13 … [State v. Pernell, 165 Wis. 2d 651, 656, 478 N.W.2d 297 (Ct. App. 1991)] establishes that when two penalty enhancers are applicable to the same crime,
First Amendment – Child Enticement Initiated Over Internet
State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee
Issue: Whether prosecution for child enticement initiated over the Internet violates the first amendment.
Holding: The first amendment doesn’t extend to speech that is incidental to or part of the criminal course of conduct.
¶43. The child enticement statute regulates conduct, not speech. The statute protects against the social evil and grave threat presented by those who lure or attempt to lure children into secluded places,
Reasonable Suspicion – Frisk – Inside Residence
State v. Jeffrey Stout, 2002 WI App 41, PFR filed 2/21/02
For Stout: James L. Fullin, Jr., SPD, Madison Appellate
Issue: Whether the police had reasonable suspicion to frisk inside a residence, based on an anonymous tip of drug activity coupled with corroboration of certain details and a furtive gesture.
Holding: Although investigative stops must be made in public (and not in a residence), the police may frisk occupants after gaining lawful entry to a residence,
Costs — Travel Expense of State’s Witness
State v. Gary L. Gordon, 2002 WI App 53, reversed on other grounds, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: The trial court erroneously exercised discretion in imposing costs for the travel expense of an officer, in that this expense was necessitated by a change in trial date attributable primarily to the prosecution, not the defendant. ¶¶49-51.
Reasonable Suspicion – Frisk – Warrant Execution – Visitor to Residence
State v. Justin Kolp, 2002 WI App 17
For Kolp: Jennifer L. Abbott
Issue: Whether the police had a reasonable suspicion to frisk Kolp, when he showed up at a residence during execution of a search warrant for evidence of possession of marijuana and which authorized the search of all persons present on the premises.
Holding: Given case law recognition that execution of a search warrant for drugs may give rise to sudden violence (citing State v.
Important Posts
Ahead in SCOW
Sign up
On Point is sponsored by Wisconsin State Public Defenders. All content is subject to public disclosure. Comments are moderated. If you have questions about this blog, please email [email protected].
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.