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Re-Sentencing – Generally

State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser

Issue/Holding:

¶6 “When a resentencing is required for any reason, the initial sentence is a nullity; it ceases to exist.” Carter, 208 Wis. 2d at 154. In resentencing “the court imposes a new sentence after the initial sentence has been held invalid.” Id. at 147. At resentencing not only may a court consider a defendant’s conduct after the imposition of the invalid sentence, id. at 146, but the court is not required to defer to the original sentencing objectives, State v. Naydihor, 2004 WI 43, ¶¶78-79, 270 Wis. 2d 585, 678 N.W.2d 220. In effect, the resentencing court is starting over. See Carter, 208 Wis. 2d at 157 (“The circuit court’s role in determining an appropriate sentence is the same whether the proceeding is an initial sentencing or a resentencing.”). Resentencing is limited only by the constitutional requirement that if a longer sentence is imposed at the second sentencing, a record must be made of the specific reasons for increased punishment in order to protect a successful defendant from vindictiveness by the court. North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). Our supreme court has read the Pearce rule as “extending to information about events and circumstances either that the circuit court was unaware of at the initial sentencing or that occurred after the original sentencing.” Carter, 208 Wis. 2d at 149 (citations omitted).

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