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Sentence After Revocation – Modification – Timeliness of Motion

State v. Joseph Scaccio III, 2000 WI App 265, 240 Wis.2d 95
For Scaccio: Jim D. Scott

Issue: Whether Scaccio’s motion to modify a sentencing imposed after revocation was untimely because he failed to appeal the original judgment of conviction.

Holding/Analysis: The principle is readily stated — you can take a direct appeal of a sentence imposed after revocation — but a certain amount of elaboration is unfortunately required. Scaccio was originally placed on probation (hence, entry of judgment of conviction #1). He was later revoked and sentenced (leading to JOC #2). He moved to modify the sentence imposed after revocation, on the basis of both new factors and erroneous exercise of discretion, only to run into a fairly bizarre waiver-type claim: “The backbone of the State’s position is that the time to initiate a direct appeal under Rule 809.30 runs from the original judgment of conviction only.” ¶6. The state’s argument is, to be polite, strained, for the simple reason that you’ve got the right to appeal any final order, which JOC #2 undeniably is. It’s certainly true that you’re limited to challenging the new event embodied by JOC #2, the sentencing after revocation, but that’s all Scaccio’s attempting to do. And that is, indeed, just how the court of appeals (properly) resolves the issue:

¶10 The rule we derive from Drake and Tobey is that a defendant cannot use WIS. STAT. RULE 809.30 in conjunction with WIS. STAT. § 973.19(1)(b) to raise issues that go back to the original judgment of conviction. A challenge to a post-revocation sentence does not bring the original judgment of conviction before the court. See Drake, 184 Wis. 2d at 399-400. However, the decisions in Drake and Tobey do not preclude a defendant from taking a direct appeal from a subsequent judgment of conviction. A defendant facing a new judgment after revocation of probation must have an opportunity to fully litigate issues initially raised by the events of the resentencing hearing and the judgment entered after that hearing.

So far, so good. But keep in mind that the main question is whether Scaccio has a new factor that would justify modification of sentence. And, although you’d never know it from reading this opinion, a trial court has inherent authority to modify sentence on the basis of new factors, at any time. See generally State v. Krueger, 119 Wis. 2d 327, 332, 351 N.w.2d 738 (Ct. App. 1984). In other words, this whole discussion about timeliness is irrelevant in relation to new factors. Worse, the court’s discussion may lead to the (wrong) conclusion that a new factor must be raised under, and within time limits of, R. 809.30. When the court finally gets around to Scaccio’s proffered new factors the result is anticlimactic. Most relate to favorable progress in prison, something that can’t constitute a new factor as a matter of law. ¶15. As for sentencing discretion, “a five year prison term for second-degree sexual assault of a child will rarely constitute an erroneous exercise of discretion.” This case isn’t the exception. ¶18.

 

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