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Enhancer — § 973.01(2)(c), Bifurcated Sentence — Application to Extended Supervision — Remedy

State v. Joseph F. Volk, 2002 WI App 274
For Volk: Charles B. Vetzner, SPD, Madison App

Issue: Whether the extended supervision portion of truth-in-sentencing, § 973.01, supports repeater enhancement, § 939.62(1)(b).

Holding: Because specifies that “confinement” may be enhanced, applying the principle that specification works an exclusion of non-enumerated items, the extended supervision portion of a sentence is not subject to repeater enhancement. ¶¶36-37. Moreover, legislative history ratifies that conclusion. ¶¶39-42. The remedy for unsupported enhancement is resentencing (rather than commuting the ES excess under § 973.13): “When a crucial component of such a sentence is overturned, it is proper and necessary for the sentencing court to revisit the entire question.” ¶¶46-49.

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