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Court of Appeals certifies new case addressing whether court must advise defendant of DNA surcharge during plea colloquy

State v. Arthur Allen Freiboth, 2015AP2535-CR, District IV, 2/26/18; case activity (including briefs)


…[W]e certify the present appeal to the Wisconsin Supreme Court to decide whether a defendant who was not advised at the time of the plea that he or she faced multiple mandatory DNA surcharges has grounds for plea withdrawal.

Sound familiar? It should. It’s the issue certified not once, but twice, in State v. Odom, 2015AP2525-CR. The supreme court granted the second certification, but last week Odom voluntarily dismissed his appeal. The court of appeals is looking to provide another vehicle for a decision on the issue, given that it has “over fifty cases on hold pending a decision in Odom” with more arriving all the time.

The court of appeals says nothing about why the issue should be certified, instead referring readers to the discussions in the Odom certifications. We’ll take the same tack, and refer readers looking for a summary of the issue to our increasingly redundant posts on the first certification, the second certification, and the supreme court’s grant of the certification.

Assuming the supreme court remains interested in addressing this issue, it seems unlikely it can get this case onto this term’s calendar at this late date. However, on March 16 the court will hear argument in two other DNA surcharge cases, State v. Cox and State v. Williams. Maybe the decisions in those cases will effectively decide the issue presented here, making further review unnecessary. Stay tuned, DNA fans!

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