As we wait on SCOW to decide the petition for review on State v. Scruggs, ASPD Peter Heyne offers some news and thoughts on DNA surcharges. On January 7, 2016, the court of appeals rejected a no-merit report in State v. Jeffrey J. Wickman noting that neither State v. Radaj nor State v. Scruggs “squarely addresses whether a mandatory DNA surcharge is appropriate in circumstances where the defendant has previously submitted a DNA sample. Rather, at this time, it remains an open question whether a mandatory DNA surcharge is punitive in effect when applied to a defendant who previously gave a DNA sample or paid a surcharge.” (Wickman at 6-7).
Brief facts: The defendant was convicted of two felonies committed in 2013, when the imposition of a DNA surcharge was discretionary. In 2014, after the new law mandating a DNA for each conviction kicked in, the sentencing court here imposed “a” (thus, apparently only 1, though the law mandated 2]) DNA surcharge without stating reasons for doing so.
On appeal, counsel stated that defendant had previously submitted a DNA sample but never paid the surcharge. She argued that her client had no meritorious challenge to the imposition of it under Radaj and Scruggs. As noted above, the court of appeals rejected that argument as well as the no-merit report.
If the defendant gave a sample, then there likely was an actual cost to the State–for the collection, submission, and analysis of that sample. See Scruggs, ¶12. If the defendant never covered that actual cost (e.g., either he just never paid it, or a judge never originally ordered a surcharge but the police/DOC took DNA anyway), then it does make some sense to require him to cover it now that the law mandates both a sample and a surcharge for all offenses, with a new conviction. Thus, a single lifetime DNA surcharge.
If instead, the defendant had been ordered to pay the surcharge–and paid it–but a sample was never collected (much less tested), then there was no cost to the State. Rather, the State got a windfall, and that old payment should cover the new 2014 conviction and new sample. Indeed, the payment should cover him for his lifetime.
The other iteration: if the defendant both submitted a sample and also paid the surcharge, he should be immune from both for the rest of his life. See State v. Simonis, 2012 WI App 84, ¶ 23, which cites State v. Long, 2011 WI App 146, ¶¶ 7-9, which cites State v. Jones, 2004 WI App 212, ¶ 11.