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Sentencing Factors – Expunged Priors, § 973.015 – Reliance on Underlying Facts

State v. Anthony J. Leitner2002 WI 77, affirming 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207
For Leitner: Jefren Olsen, SPD, Madison Appellate

Issue: Whether the sentencing court erred in considering the facts of convictions expunged under § 973.015.


¶46. If information about the underlying facts of an expunged conviction come from a source other than a government record, such as testimony of a witness, the information can be used by the circuit court. It does not make sense to read Wis. Stat. § 973.015 to prohibit a circuit court from considering the underlying facts of an expunged record of conviction if those facts are located in a file of a district attorney or law enforcement agency that is not required to be expunged, but nonetheless permit a circuit court to consider the same underlying facts supplied by another source.

The opinion contains this unqualified statement: “A defendant is entitled to resentencing when a sentence is affected by a circuit court’s reliance on an improper factor.” ¶42.

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