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OWI – Unauthorized Sentence – Probation without Mandatory Minimum Confinement for OWI 6th – Resentencing as remedy

State v. William P. Eckola, 2001 WI App 295
For Eckola: Gregory A. Parker

Issue: Whether the trial court erroneously exercised discretion by placing Eckola on probation for OWI-6th without requiring confinement for at least the presumptive minimum mandated by § 346.65(2)(e).

Holding:

¶15. When the circuit court, in its discretion, determines that a defendant will be placed on probation, Wis. Stat. § 973.09(1)(d) requires that the person be confined for at least the mandatory minimum period. Here Wis. Stat. § 346.65(2)(e) requires that a defendant be imprisoned for at least six months for fifth or greater offense PAC. Eckola was convicted of sixth offense PAC. Therefore, the court was required to confine Eckola for at least six months as a condition of probation.

¶16. When the circuit court has made an error that underlies the exercise of its discretion, we may not exercise the court’s discretion for it. Rather, we are to remand to permit the court to exercise its discretion. Wisconsin Ass’n of Food Dealers v. City of Madison, 97 Wis. 2d 426, 434-35, 293 N.W.2d 540 (1980). We therefore reverse and remand for resentencing.

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