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Resentencing – Imposition of Incorrect Penalty Scheme

State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding: The remedy for a sentence imposed under an incorrect penalty scheme is resentencing:

¶14      Both parties agree that if the sentence the circuit court imposed was improper, Thums is entitled to be resentenced as to both components of the bifurcated sentence. We have held that the court did err when it applied TIS-I statutes during sentencing because those penalties were obsolete before Thums’ conduct became chargeable as stalking with a dangerous weapon. Accordingly, we remand to the circuit court for resentencing in accordance with the proper penalty scheme. The court may also visit whether the companion charges should be concurrent or consecutive as the court sees fit.

The court doesn’t say just why Thums is subjected to resentencing on all counts, when his attack was just on a single, improperly sentenced count. But the theory might be that a multi-count sentencing “package” becomes “unbundled” when one count falls. If that’s so, then perhaps the theory can be used to your client’s benefit in any given case. It might also be wondered just why the automatic commutation provision of § 973.13 (sentence exceeded permissible maximum automatically commuted to proper maximum) doesn’t apply to instances such as Thums’. The short answer is, because the court of appeals says it doesn’t, e.g., State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841 (Ct. App. 1996) (“when a sentence is commuted pursuant to § 973.13, STATS., the sentencing court may, in its discretion, resentence the defendant if the premise and goals of the prior sentence have been frustrated”); cf., State v. Joseph F. Volk, 2002 WI App 274, ¶¶46-49 (remedy for unsupported enhancement is resentencing rather than § 973.13 commutation of ES excess: “When a crucial component of such a sentence is overturned, it is proper and necessary for the sentencing court to revisit the entire question”). But see State v. Glenn F. Schwebke, 2001 WI App 99, ¶¶25-31, affirmed on other grds.2002 WI 55 (remedy for sentence which exceeded the permissible maximum—multiple counts of probation running consecutive to one another—is automatic commutation to total allowable term of probation).


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