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Sentencing Discretion: DNA Surcharge

State v. Scott R. Long, 2011 WI App 146 (recommended for publication); for Long: Jeff T. Wilson; case activity

DNA surcharge, conditioned on Long not having previously provided sample or having paid surcharge, upheld as proper exercise of discretion:

¶8        Here, the circuit court ordered the DNA sample contingent on whether one had previously been provided.  If the sample had not previously been provided, the circuit court reasoned that the DNA surcharge was appropriate because “it would be for a sample provided in connection with this case.”  This explanation is consistent with the rationale of the circuit court which we affirmed in Jones.  Long does not contend that he had already provided a sample or paid a surcharge.  By ordering Long to pay the DNA surcharge if, and only if, a DNA sample had not previously been provided, the circuit court considered factors that we suggested in Cherry could be pertinent to the reasoned exercise of discretion.  The circuit court here, consistent with the rationale expressed in Jones, further explained its reasoning in its order denying Long’s motion to vacate the surcharge:

If this is the defendant’s first felony case in which he is providing a sample, there is a cost involved in connection with this case.  There is a cost of drawing the sample, a cost for having it analyzed, and a cost for having it put into the [S]tate DNA database …  The court did not simply impose a DNA surcharge because the court could do so, but because the [S]tate incurred a cost for DNA in this case where there was no prior DNA taken or submitted.

¶9        As in Jones, we conclude that the record here reflects a reasoned exercise of discretion—not an imposition of a surcharge simply because it is possible—and satisfies the requirements we explained in Cherry.  Consequently, we affirm.

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