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Misdemeanor probation period may not be increased under § 973.09(2)(b)2.

State v. Aaron S. Loos, 2012AP2154-CR, District 3, 5/14/13; court of appeals decision (1-judge, ineligible for publication); case activity

Though Loos was convicted of one misdemeanor and one felony at the same time, the maximum one-year term of probation for the misdemeanor under § 973.09(2)(a)1r. could not be increased by one year under § 973.09(2)(b)2. That statute may be applied only to increase the maximum term of probation on a felony conviction, not a misdemeanor conviction. State v. Reagles, 177 Wis. 2d 168, 171-76, 501 N.W.2d 861 (1993), § 973.09(2)(b)2. Thus, the term of probation for the misdemeanor must be reduced from two years to one year. (¶¶9-12).

After Loos moved for postconviction relief, his probation was revoked and he was sentenced to jail on the misdemeanor. (¶¶4-7). He argued that his sentence after revocation must be vacated because revocation proceedings did not begin until after the expiration of the maximum allowable one-year term of probation. The State does not respond to this argument, so the court deems it conceded. Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are deemed conceded). Accordingly, the jail sentence imposed after revocation must be vacated. (¶13).

Given the state’s concession, the court does not detail the basis for vacating the sentence beyond noting that revocation proceedings commenced over one year after Loos was placed on probation.  (¶¶5, 13). In a nutshell, unless DOC acts under § 304.072(1) or (3) to toll probation or preserve jurisdiction (by commencing an investigation, issuing a violation report, or issuing an apprehension request concerning an alleged violation prior to the expiration of probation), it no longer had jurisdiction to supervise or revoke; that, in turn, means the court had no jurisdiction to sentence. State v. Stefanovic, 215 Wis. 2d 310, 319, 572 N.W.2d 140 (Ct. App. 1997); Bartus v. DHSS, 176 Wis. 2d 1063, 1082-83, 501 N.W.2d 419 (1993).

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