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Sentence Modification — Procedure — Timeliness

State v. Robert L. Noll, 2002 WI App 273

Issue: Whether a new-factor based motion to modify sentence may be rejected as untimely under § 973.19.

Holding: The motion invoked the trial court’s inherent authority to modify, and therefore § 973.19 and its 90-day deadline was inapplicable. ¶5. The two procedures are distinct. Under § 973.19 a defendant may within 90 days of sentence “assert[] an erroneous exercise of discretion based on excessiveness, undue harshness, or unconscionability,” ¶10, while a court’s inherent authority to modify based on a new factor isn’t constrained by any time limit, ¶¶11-12. The court’s prior intimation in State v. Scaccio, 2000 WI App 265, ¶13, 240 Wis. 2d 95, 622 N.W.2d 449 that § 973.19 requires a new factor is expressly withdrawn. ¶¶14-16.

The court declines to rule that the result should be sustained due to lack of merit, saying that this is something that must be addressed in the first instance by the trial court. ¶¶6-7.

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