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Sentencing Discretion: DNA Surcharge

State v. Jaredt E. Simonis, 2012 WI App 84 (recommended for publication); case activity

Although Simonis was properly ordered pursuant to § 973.047 provide a DNA sample, the sentencing court erroneously exercised discretion in ordering him under § 973.046 to pay the associated costs.

¶1        The sole issue on appeal is whether the circuit court properly exercised its discretion in ordering Jaredt Simonis to pay the DNA analysis surcharge pursuant to Wis. Stat. § 973.046(1g) (2009-10).[1]  Simonis contends the circuit court did not properly exercise its discretion because the court’s rationale was based on an impermissible consideration: the court’s assessment that Simonis might in the future commit a crime that would generate costs for DNA analysis.  We conclude that § 973.046(1g) does not authorize the circuit court to impose a DNA analysis surcharge for this reason.  Instead, if Simonis commits a future crime in which there are costs for DNA analysis, payment of a surcharge to cover those costs will be a matter for the court in that case to decide, pursuant to the applicable statutes and case law.  Accordingly, we reverse the portions of the judgment of conviction and of the postconviction order relating to the DNA surcharge and remand for further proceedings consistent with this opinion.

¶16      We conclude it is not a permissible rationale because it is based on an unreasonable reading of the statute.  Wisconsin Stat. § 973.046 plainly authorizes a circuit court to impose a surcharge—either a mandatory surcharge under § 973.046(1r) for the crimes specified there or a discretionary surcharge under § 973.046(1g) for all felonies not included in subsection (1r)—even if a person has previously been ordered to provide a DNA specimen pursuant to Wis. Stat. § 973.047(1f).  See State v. Jones, 2004 WI App 212, ¶¶7-11, 277 Wis. 2d 234, 689 N.W.2d 917 (rejecting the defendant’s argument that §§ 973.046 and 973.047 do not permit the circuit court to impose a surcharge unless a DNA specimen is ordered in the same case; affirming as a proper exercise of the court’s discretion an order that the defendant pay the surcharge unless he shows he paid it in another case).  Indeed, there is nothing in the language of either § 973.046 or § 973.047 that prevents a surcharge from being imposed as part of the sentence for the later crime, even if a surcharge has already been imposed and paid in one or more prior cases, if additional costs for DNA analysis are incurred in the later case.

The DNA surcharge is mandatory for certain sexual assaults, discretionary for felonies otherwise, ¶12. State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393 (failure to exercise discretion before imposing DNA surcharge reversible error), discussed throughout opinion in some detail. Factors discussed as proper in Cherry deemed applicable here, notwithstanding that this case did not involve any DNA analysis, in light of the subsequently-decided State v. Long, 2011 WI App 146, ¶8, 337 Wis. 2d 648, 807 N.W.2d 12 (DNA surcharge appropriate “because the State incurred a cost for DNA in this case where there was no prior DNA taken or submitted”).

¶23      Long was decided after the notice of appeal was filed in this case, so it is understandable that neither party referred to it in the circuit court.  However, although Long was decided before the appellate briefing, neither party discusses how our conclusion in Long bears on this case.[5]  But there is no question that in Long we concluded that the taking of a DNA specimen, analyzing it, and putting it in the DNA database when a specimen has been ordered by the circuit court pursuant to Wis. Stat. § 973.047 is a proper consideration in imposing a surcharge—if a surcharge has not previously been paid based on those same costs.  Accordingly, on remand the circuit court may consider this factor along with those specifically identified in Cherry and “any other factors the [circuit] court finds pertinent” in deciding whether to impose a surcharge on Simonis.[6]  See Cherry, 312 Wis. 2d 203, ¶10.

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