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DNA Collection, § 973.047, and Surcharge, § 973.046 — Prior Collection

State v. Franciollo L. Jones, 2004 WI App 212, PFR filed 11/11/04
For Jones: Syovata Edari; Ellen Henak (on PFR), SPD, Milwaukee Appellate

Issue: Whether the trial court properly ordered Jones to pay a DNA surcharge even though he had already provided a DNA sample in an earlier case.


¶5 WISCONSIN STAT. § 973.047 obligates the trial court to require anyone convicted of a felony to provide a DNA specimen. … As the statute advises, the purpose behind this requirement is to create a DNA databank. The statute makes no exception for persons who have already submitted DNA samples, although the trial court in this case found that the State Crime Laboratory could not use more than one sample per person.

¶6 WISCONSIN STAT. § 973.046 gives the trial court discretion to impose a DNA surcharge on persons convicted of most felonies, but mandates the surcharge upon conviction for violation of WIS. STAT. §§ 940.225, 948.02(1) or (2), or 948.025.

¶7 Jones contends that the purpose of the surcharge is to fund the databank and the trial court cannot order the surcharge without ordering the DNA sample. … The language of the statute plainly states that the trial court has the discretion to order a DNA surcharge upon the entry of a judgment in this felony case. Nothing in § 973.046(1g) requires a DNA sample to be collected before the court can order the payment of the surcharge.

¶11 The trial court also noted that it would vacate the surcharge if the defendant could show that he previously paid a surcharge in another case. Jones argues that WIS. STAT. § 973.046(1g) does not give the trial court authority to impose a surcharge for a sample collected in connection with an unrelated case. However, as indicated by the statute, the trial court was able to exercise its discretion and to impose a DNA surcharge regardless of whether Jones gave a sample in this case. Under the circumstances present here, therefore, we conclude that the trial court properly exercised its discretion in imposing a DNA surcharge in this case. Accordingly, we affirm.

This is a chronic problem, in Milwaukee anyway; the surcharge ($250) is not inconsiderable and this result a real shame – not least because the decision doesn’t quite resolve some underlying problems. As the block quotes suggest, the legislature places DNA collection and surcharge in two distinct statutes. For certain specified felonies the sentencing court must impose a $250 surcharge; for all other felonies, the surcharge is discretionary. § 973.046. And as to all felony convictions, the sentencing court must order the defendant to provide a DNA sample, under § 973.047. (As mentioned below, the administrative code mandates a surcharge whenever a sample is ordered, which means that a surcharge is really non-discretionary in felonies.) In Jones’ instance, the court ordered that he provide a sample under § 973.047 – but as it turned out this was unnecessary, because the state already had his sample, and no attempt was ever made to implement the collection order. But a surcharge was also ordered (as noted, the scheme made it mandatory); when Jones pointed out on postconviction motion that the state didn’t need his sample, the judge said that the surcharge was a discretionary matter and would be forgiven as a matter of discretion if Jones could show he’d paid the surcharge on the earlier collection. The court of appeals’ affirmance pays scant attention to significant underlying problems.

Fourth Amendment

Long and short of it is that DNA collection is upheld under either of two rationales, “special-needs” and “reasonableness-balancing”; in theory, at least, neither theory should allow multiple collections from the same person. Once the state already has the person’s sample, there can be no need to collect another. In other words, the order that Jones provide an additional sample violated his fourth amendment rights. The court of appeals more or less finesses this problem by assuming that the trial court rescinded this order. ¶1.True enough, once the order to provide a sample is taken off the table, it probably doesn’t matter why. But then the question becomes why the court ordered the surcharge in the first place. If the court of appeals can’t be faulted for ignoring the threshold fourth amendment dimension of the issue, its treatment of the trial court’s discretion is seriously problematic.

Sentencing Discretion

Start with this premise: because a surcharge is in effect a fine, and because a fine is reviewed same as a sentence, State v. Kuechler, 2003 WI App 245, ¶¶7-12, a surcharge must also be reviewed as an act of sentencing discretion. And that means triggering the close review recently mandated by State v. Gallion, 2004 WI 42. You won’t find any sort of close scrutiny of Jones’ surcharge. Indeed, you’ll be hard pressed to find any scrutiny. About all the court of appeals says is that because the trial court could exercise discretion in favor of a surcharge, its exercise was proper. ¶11. In theory, that is, a reviewing court needs to know exactly why this surcharge advanced any sentencing goal — something not explained in this opinion. One thing is clear though: the judge linked the surcharge to the sample ordered in a prior, unrelated case. This is at least seemingly improper under State v. Oakley, 2000 WI 37 (court can’t make payment of prior, unpaid fine condition of probation in new case). How is Jones’ situation meaningfully distinguishable? The court of appeals doesn’t say, indeed doesn’t even cite Oakley.

That said, an alternative theory is being litigated: a DNA surcharge is not in the nature of a fine, but, rather, is a “service or fee” that may be forgiven on account of indigency under § 814.29(1)(a); this argument is raised argument in a pending court of appeals case, State v. Ryan E. Baker, Nos. 04-0590 / 0591-CR, Dist. IV.

But that’s not quite all.

Finality of Sentence

In at least some instances, the judge orders the DNA sample without mentioning the surcharge and then the clerk imposes the surcharge in the judgment of conviction as a ministerial act. Nothing wrong with that, because where the court does order a sample, then the court must (i.e., “shall”) “impose a DNA analysis surcharge of $250[.]” Admin. Code Jus § 9.08(1). (Not clear from the facts if this was what happened to Jones.) Then, as in Jones’ instance, the defendant goes back on postconviction motion and says the order to provide a sample should be vacated, and the trial court then exercises “discretion” under § 973.046. There’s at least an argument that such an act violates an expectation of finality in sentence, and therefore violates double jeopardy. See, generally, State v. Willett, 2000 WI App 212, for overarching principles. The decision may leave these issues begging, but may well be treated as if it had indeed resolved them. If all else fails, you’re entitled to an indigency hearing, Kuechler, 2003 WI App 145, ¶14.

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