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Review – Conflict between oral pronouncement written judgment

State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: “(W)here there is conflict between a trial court’s oral pronouncement and a written judgment, the oral pronouncement controls.” ¶27, citing State v. Perry, 136 Wis. 2d 92, 114, 401 N.W.2d 748 (1987). This rule is applicable even though “the trial court’s oral pronouncement came after, rather than before, the written judgment. Nonetheless, the pronouncement reflects the authority under which the court issued the restitution order. We conclude that we must give that pronouncement its intended effect.” Id., n. 7.

Interesting variation on this principle: sentencing court failure to articulate condition of release “create(s) a material conflict between the written and oral sentencing orders.” U.S. v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003) (stressing, as well, that rationale for oral-pronouncement-controls rule stems from defendant’s right to presence at sentencing – note that in Wisconsin the defendant has an absolute right to be present at sentencing, § 971.04(1)(g); State v. Koopmans, 210 Wis. 2d 670, 563 N.W.2d 528 (1996)); U.S. v. Bigelow, 5th Cir No. 05-20539, 8/23/06 (same effect); People v. Zackery, Cal App No. C051431, 12/27/06:

“With certain exceptions not applicable here [citations] judgment and sentence in felony cases may be imposed only in the presence of the accused.” (In re Levi (1952) 39 Cal.2d 41, 45.) …The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. …

And see also U.S. v. Rosario, 2nd Cir. No. 03-1686-cr, 10/8/04 (“In some circumstances where a written judgment entered in the defendant’s absence differed from an oral sentence, we have afforded the sentencing judge an opportunity to reimpose the provisions of the written sentence in the defendant’s presence.”).

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