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State v. Clayton W. Williams, 2011AP2868-CR, petition for review granted 11/21/13

Review of published court of appeals decision; case activity

Issue (composed by On Point)

Does § 346.65(2)(am)6., which provides that “the confinement portion of a bifurcated sentence imposed under s. 973.01 [for an OWI 7th, 8th, or 9th] shall be not less than 3 years,” require that a bifurcated sentence be imposed?

The court of appeals held that the statute requires a minimum period of confinement if a bifurcated sentence is imposed, but does not mandate imposition of a bifurcated sentence; instead, a court could withhold sentence and place the defendant on probation; or could impose a jail sentence; or, presumably, could impose a bifurcated sentence with three years of confinement but stay execution and place the person on probation. Our prior post characterized the court’s conclusion as a refreshingly exact reading of plain statutory language that–as the court of appeals noted (¶11)–was made even plainer by the surrounding OWI penalty provisions. There was, however, a dissent, which concluded the statute was ambiguous and cited legislative history suggesting the legislature intended to require imposition of a bifurcated sentence with a minimum term of confinement in all cases. Given the dissent–and the fact the issue involves multiple offense drunk driving prosecutions–it’s not surprising the state’s petition for review was granted. Perhaps the legislature will speak before the supreme court does, though. There are two bills pending (AB 180 and SB 174) that would amend the statute so it clearly mandates the imposition of a bifurcated sentence.

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