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Sentencing Review – Factors – TIS – Probation as 1st Alternative

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose


¶47      Harvey correctly states Gallion’s teaching that probation should be considered as the first sentencing alternative. Gallion, 270 Wis.  2d 535, ¶25. Here, the trial court expressly addressed probation. … In sum, the court concluded that probation would unduly depreciate the offense. …

¶48      Probation should be the disposition unless confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or probation would unduly depreciate the seriousness of the offense. Id., ¶44. Of these factors, only the need for treatment in confinement gave the trial court some pause. But since the rule is stated in the disjunctive, all factors need not be satisfied. SeeState v. Schumacher, 144 Wis.  2d 388, 401, 424 N.W.2d 672 (1988) (applying the principle that where two statutory approaches are stated in the disjunctive, either approach may be employed). The court sufficiently explained the rationale underlying the bifurcated sentence and how the sentence would advance the specified objectives.See Gallion, 270 Wis.  2d 535, ¶45. We see no erroneous exercise of discretion.


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