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Double Jeopardy – Sentence: Amending Sentence to Correct Mistaken Oral Pronouncement

State v. Frank James Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42
For Burt: Michael P. Jakus

Issue: Whether the trial court violated double jeopardy by amending sentence the same day of imposition, before judgment of conviction had been entered, after realizing it had mistakenly said “concurrent” instead of “consecutive.”

Holding: “The double jeopardy clauses did not attach a degree of finality to Burt’s original sentence that prevented the trial court from correcting its error later in the same day,” ¶11.

The opinion simply isn’t clear as to when an expectation of finality, in a double jeopardy sense, attaches to sentence. The court rejects the idea that § 973.15(1) — all sentences commence at noon of the day of sentence — is relevant to double jeopardy analysis, ¶13, but doesn’t say what might fill the vacuum.See also U.S. v. Rosario, 386 F.3d 166 (2nd Cir. 2004), and cases string-cited:

After service of the sentence had begun, it was once thought that a sentence could never be increased, see United States v. Benz, 282 U.S. 304, 307 (1931). This view, however, has been altered in more recent times. See DiFrancesco, 449 U.S. at 138-39 (limiting import of language in Benz) …. The modern principle governing all of these situations appears to be, as succinctly synthesized by then-Judge Bork, “that the application of the double jeopardy clause to an increase in a sentence turns on the extent and legitimacy of a defendant’s expectation of finality in that sentence.” United States v. Fogel, 829 F.2d 77, 87 (D.C. Cir. 1987).The same principle applicable to sentence increases in general has been applied to determine the validity of written judgments that purport to increase a sentence as orally pronounced….


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