State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler
Issue/Holding: ¶5, n. 2: “Technically, Stenzel is seeking a modification of a sentence imposed by an erroneous exercise of discretion; resentencing is only available if the initial sentence is vacated because it was illegally imposed. State v. Carter, 208 Wis. 2d 142, 146-47, 560 N.W.2d 256 (1997).”
Well, as long we’re being technical … Carter doesn’t quite say that:
¶3. This case does not involve sentence modification. Sentence modification involves an entirely different line of authority than resentencing. The purpose of sentence modification is to allow a court to correct a sentence when new factors frustrate the purpose of the sentencing court. State v. Franklin, 148 Wis. 2d 1, 14, 434 N.W.2d 609 (1989). To promote the policy of finality of judgments, strict rules govern the information that can be considered in a request for sentence modification. Id. at 9. There is no finality concern when the court imposes a new sentence after the initial sentence has been held invalid.
In context, then, it’s clear that by “sentence modification” Carter meant new-factor-based modification. (A point underscored, incidentally, by the holding of David Lozano, Jr. v. Frank, 7th Cir No. 03-2997, 9/13/05 that a new factor-based sentence modification doesn’t trigger a new federal habeas deadline, in contradistinction to a direct-appeal event.) Whether there’s good reason also to apply the distinction between resentencing and “sentence modification” to erroneous exercises of discretion is something else. Or was something else, before this toss-away footnote. But does it make a difference? Maybe: on the downside, it might make a challenge somewhat harder to mount if you assume that getting a reviewing court to reduce a sentence is tougher than getting it to set aside the sentence and return it to the trial court. But on the plus side, you can plausibly claim that by not unsettling the sentence, a motion to modify doesn’t waive whatever double jeopardy protection is left against an increase in sentence (see generally State v. Victor Naydihor, 2004 WI 43).