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No error in imposing jail without expressly considering probation

State v. Marnie L. Coutino, 2016AP2386-CR, 7/19/2017, District 2 (one-judge decision; ineligible for pubication); case activity (including briefs)

Marnie Coutino seeks resentencing on the ground that the trial court erroneously exercised its discretion when it imposed a 30-day jail sentence without considering whether probation was appropriate.

The court did not refer to probation during its sentencing remarks; at the postconviction motion hearing it said

because the recommendation was a fine only, I think a probationary sentence would have … made it potentially more cumbersome for her given her situation and I think I would have given her jail time with probation if I would have considered probation.

So, in lieu of probation I didn’t see probationary needs. I just thought the jail time was sufficient and it wasn’t an extended period of jail time. It was enough not to depreciate the seriousness of the offense which is what I did, the 30 days.


Coutino argues that the court’s statement is an admission that it did not consider probation at all, contrary to State v. Klubertanz, 2006 WI App 71, ¶19, 291 Wis. 2d 751, 713 N.W.2d 116. The court of appeals finds consideration to have been implicit:

As a practical matter, every circuit court engaged in the sentencing of a defendant is aware that, except in limited circumstances, probation is an option. Here, the fact that the court indicated that jail time, here thirty days, was necessary to address Coutino’s conduct and character—“I could have given you ninety days and I was inclined to go something higher”—clearly indicates the court believed confinement was a necessary component of the sentence. This necessarily means the court rejected the possibility of probation without confinement. As our supreme court stated in Anderson v. State, 76 Wis. 2d 361, 366, 251 N.W.2d 768 (1977), “Rejection of probation is a necessary predicate to a determination that incarceration is required in a particular case.”


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