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Sentencing – Modification – New Factor – General Test

State v. Randy D. Stafford, 2003 WI App 138
For Stafford: Robert G. LeBell


¶12. … To obtain sentence modification, a defendant must establish that (1) a new factor exists, and (2) the new factor justifies sentence modification. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). Whether a fact or set of facts constitutes a new factor presents a legal issue which we decide de novo. Id. Whether a new factor justifies sentence modification, however, presents an issue for the trial court’s discretionary determination, subject to our review under the erroneous exercise of discretion standard. Id.

¶13. A new factor is a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of the original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties. Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). Further, a new factor is “an event or development which frustrates the purpose of the original sentence. There must be some connection between the factor and the sentencing-something which strikes at the very purpose of the sentence selected by the trial court.” State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278 (Ct. App. 1989).


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