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Enhancer – Pleading – Post-Plea Amendment

State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate

Issue: Whether post-plea amendment of the repeater allegation to change its basis prejudiced the defendant hence was improper.


¶31      It is the State’s burden to prove that Bonds was not prejudiced and Wis. Stat. § 973.12(1) was satisfied through notice of sufficient allegations of the basis for charging habitual criminality. Stynes, 262 Wis.  2d 335, ¶10. When we apply the principles from StynesGerardCampbell and Wilks to the facts before us, we conclude that Bonds was not prejudiced by the State’s post-conviction amendment of the original allegations in the complaint on which the State based its assertion of habitual criminality. First, there is no dispute that Bonds’s prior convictions made him a repeater. Second, there is no dispute that Bonds was alleged to be a repeater before he pled, in compliance with § 973.12. … Third, Bonds suffered no prejudice when at sentencing, after he was convicted by a jury, the State amended the factual basis to a felony conviction that was sufficient to satisfy Wis. Stat. § 939.62, rather than relying on the three misdemeanor convictions listed in the criminal complaint.  The amendment did not prevent Bonds from meaningfully assessing the potential maximum penalty to which he could be subjected. …

¶32      … In addition, the “prejudice” that Bonds complains of is the adverse effect on a potential defense to the repeater allegation. Campbell concludes this is insufficient to set aside an amendment to a repeater allegation because it does not affect a defendant’s ability to assess the potential maximum sentence to which he may be subjected. Campbell, 201 Wis. 2d at 793.  We agree with Campbell.


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