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Resentencing – modification of probation before term commences.

State v. James E. Gray, 225 Wis.2d 39, 590 N.W.2d 918 (1999), affirming unpublished decision
For Gray: Helen M. Mullison

Issue/Holding: Gray was originally convicted of three counts. On postconviction motion, the trial court vacated and dismissed with prejudice one count for lack of proof, and ordered a new trial on a second count. The third count conviction, for which Gray had received probation, remained viable. However, the trial court, after granting relief on the other counts, modified probation to include one year in jail as a condition. The supreme court upholds that modification. A court has statutory authority to modify probation before its expiration, Wis. Stat. § 973.09(3)(a). The circuit court can invoke this authority even if probation has not yet started. And, when the intent of probation is frustrated because of an unmet condition – here, confinement on the vacated counts – the court has authority to modify it, even if this occurs before probation commences.

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