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§§ 940.32(2) & (2m)(a), Stalking, Having Prior Conviction for Violence – Prior Conviction Is Element, not Penalty Enhancer

State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. Lazotte, SPD, Madison Appellate

Issue/Holding: Prior conviction for a violent crime is element, not penalty enhancer, of stalking, §§ 940.32(2) & (2m)(a):

¶30      First, sub. (2m)(a) designates a list of specific crimes that elevate a simple stalking offense to a Class H felony. These enumerated prior convictions are for a specific set of violent crimes, prior stalking offenses, and harassment offenses. The legislature’s focus on the nature of the prior crime, rather than the simple fact of a prior conviction, demonstrates that the legislature’s intent was not simply to provide an enhanced punishment for habitual criminality. The selection of these specific crimes indicates that the legislature defined stalking as an aggravated crime when the perpetrator has a history of violent or obsessive behavior.¶

31      Second, although the habitual criminality statute provides a number of years that a judge may add to a sentence if there are prior convictions, the stalking statute specifies that defendants are guilty of a higher class of felony if they have specific prior convictions. …

¶32      Third, the stalking statute is not structured like the habitual criminality statute, which defines penalty enhancers rather than substantive elements. Instead, the stalking statute sets up three classes of stalking, with increasing punishments——Class I felonies under § 940.32(2), Class H felonies under § 940.32(2m), and Class F felonies under § 940.32(3).

 

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