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Enhancer — § 940.03, Felony-Murder (1999-2000)

State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: The felony murder statute, § 940.03 (1999-2000), contains characteristics suggestive of both penalty enhancers (it adds a specified term to the maximum penalty applicable to the underlying crime), ¶15, and also substantive offenses (it is located in a chapter that defines substantive offenses; and it incorporates the elements of offenses located elsewhere), ¶16, hence is ambiguous. Legislative history shows intent to create a stand-alone crime:

¶20 Therefore, we are persuaded that the legislature believed it was addressing a stand-alone crime, not a penalty enhancer. To summarize, the legislature at one time designated felony murder as a Class B felony, thus eliminating the primary reason the State now contends felony murder is a penalty enhancer: its add-on penalty structure. Further, in fixing unrelated problems, the legislature considered retaining the designated felony approach by making felony murder a Class A felony. We think it apparent that if the legislature thought it was dealing with a penalty enhancer, some part of the debate would reflect the need to return to an add-on penalty structure so as to restore the statute to penalty-enhancer status. However, we find no indication that this was part of the debate. Rather, the legislature returned to the old penalty language for reasons unrelated to whether the statute was thought to be a penalty enhancer.

As the court explains, ¶¶6-10, this makes a difference because of interaction between the enhancer rule and the “75%” rule for computing confinement time. The long and short of it is that, as a stand-alone unclassified crime, § 940.03 (1999-2000) carries a maximum initial confinement term of 37 years 6 months, but if deemed a penalty enhancer this term would be 40 years. And, as the court also points out, ¶10 n. 2, the penalty has since been changed so that the current IC max is 26 years 3 months.


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