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Sentencing Review – Factors – Probation

State v. Eduardo Jose Trigueros, 2005 WI App 112
For Trigueros: Eileen Miller Carter


¶8        Second, Trigueros claims that the trial court erroneously exercised its discretion because it did not consider probation as an option. Again, we disagree. In each case, the sentence imposed shall “call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.” McCleary, 49 Wis. 2d at 276, 182 N.W.2d at 519 (quoted source omitted). Here, as we have seen, the trial court considered the appropriate factors. Based upon those factors, including what it characterized in its decision and order denying Trigueros’s motion for postconviction relief as his treatment needs, it determined that “probation … is appropriate,” but that treatment in the Felony Drug Offender Alternative to Prison Program was a “critical part of that.” This was an appropriate exercise of discretion.

Note that Trigueros got probation: how can he possibly argue that the trial court failed to consider something that it ordered in the event? It’s true that Trigueros probably would’ve been better off if the judge had sentenced him in line with the State’s recommendation (14 months IC, 24 months ES), and maybe he’s arguing that the underlying sentence (imposed and stayed 24 months IC, 36 months ES) is too long – but that’s not the way the court characterized his argument. Indeed, the court of appeals goes on to reject Trigueros’ argument that the sentencing court ignored the PSI “recommendation that Trigueros be placed on probation,” ¶9. Net result? Perhaps there’s less to this decision than meets the eye.


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