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Enhancers — Multiple Enhancers — §§ 939.62(1)(b), 961.48(2)

State v. Paul R. Maxey, 2003 WI App 94
For Maxey: Douglas I. Henderson

Issue/Holding: A sentence may be enhanced by both the general repeater provision of § 939.62(1)(b) (1999-2000) and § the specific repeat drug offender provision of § 961.48(2) (1999-2000), given the rationale of State v. Richard W. Delaney, 2003 WI 9:

¶14. In summary, the law of Wis. Stat. § 939.62 as explained in Delaney is as follows. A defendant is eligible for an enhanced sentence as a habitual criminal if: (1) the present conviction is for any crime allowing for imprisonment except escape or a failure to report; and (2) the prior conviction is for any felony or misdemeanor except motor vehicle offenses and offenses prosecuted in the juvenile court.

¶15. The allegations of the information in this case clearly qualify Maxey as eligible for penalty enhancement under this law. The information alleges that Maxey possessed a controlled substance and the statute provides for imprisonment as a possible penalty, thus satisfying the “any crime” and “imprisonment” requirements of Wis. Stat. § 939.62(1). In addition, Maxey’s prior convictions are adult drug related offenses, not motor vehicle or juvenile offenses, thus satisfying the prior conviction requirements of § 939.62(1)(b) and (3)(a). Indeed, we do not read Maxey to dispute that he facially qualifies for an enhanced penalty under § 939.62.

State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992) again limited to its facts, namely a single prior drug-related conviction. ¶¶19-20. Where there are two priors, one may be used to support the general repeater, and the other the drug enhancement. ¶21. Note that § 961.48(2) (1999-2000) was repealed as part of the Truth-in-Sentencing overhaul, see ¶ 2 n. 3.

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