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Enhancer — TIS-I – Calculation (Unclassified Felony)

State v. Michael D. Jackson, 2004 WI 29, affirming unpublished decision of court of appeals
For Jackson: Joseph E. Schubert


¶42 Applying the rule of lenity, we conclude that Wis. Stat. § 973.01(2)(b)6 should be read together with Wis. Stat. § 973.01(2)(c) in calculation of the maximum term of confinement for unclassified felonies with penalty enhancers under TIS-I. We apply the 75% rule of Wis. Stat. § 973.01(2)(b)6 after the penalty enhancer is added to the underlying maximum term of confinement. This addition, in turn, pursuant to the second sentence of Wis. Stat. § 973.01(2)(c), increases the total term of imprisonment by the same amount. We then apply the 75% rule to the total term of imprisonment to calculate the maximum amount of confinement for the unclassified felony with the penalty enhancer.

Six year penalty enhancer                                  (72 months)
+ Underlying maximum term of imprisonment     (36 months)
(Pursuant to Wis. Stat. § 973.01(2)(c))             ___________

108 months

108 months x 75% = 81 months maximum amount of confinement

¶43 Although our determination of the maximum term of confinement for Jackson’s unclassified felony is less than both the circuit court and court of appeals, our decision has no practical effect upon the sentence imposed. As the court of appeals explained, any reduction in Jackson’s unclassified offense leaves his Class E concurrent sentence both unchanged and controlling. Jackson, unpublished slip op. at ¶19.

This is a TIS-I case, and § 973.01(2)(b)6 read as follows: “For any felony other than a felony specified in subds. 1. to 5., the term of confinement in prison may not exceed 75% of the total length of the bifurcated sentence.” As the court notes, “(u)nder TIS-II, only a few unclassified felonies remain …. Therefore, the 75% rule has limited application for future cases.” ¶37 n. 8.


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