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State v. Jacqueline Robinson, 2011AP2833-CR, petition for review granted, 2/11/13

Review of per curiam court of appeals decision; case activity

Issue (from the Petition for Review):

Were Robinson’s state and federal constitutional rights against double jeopardy violated when, after imposing a sentence and remanding her to start serving the sentence forthwith, the circuit court recalled the case the next day and increased her sentence, not based on an error of law or a misstatement of fact?

This case addresses an issue that probably doesn’t arise often, but when it does has an obvious impact on our clients.

The day after sentencing Robinson, the sentencing judge recalled the case. He explained that, after the sentencing hearing the day before, he went on CCAP and looked up Robinson’s sentence in a case from another county and realized he mistakenly believed that sentence was consecutive to other previously imposed sentence when it really was concurrent. Because of that mistake, the judge said the sentence he imposed the day before was not the sentence he “wanted to achieve yesterday.” To achieve his sentencing objective, the judge increased Robinson’s sentence by nine months. That is not a per se double jeopardy violation, U.S. v. DiFrancesco, 449 U.S. 117 (1980); rather, the double jeopardy implications depend on whether the defendant has a legitimate expectation of finality in the sentence, and that in turn “may be influenced by many factors, such as the completion of the sentence, the passage of time, the pendency of an appeal or the defendant’s misconduct in obtaining the sentence.” State v. Gruetzmacher, 2004 WI 55, ¶33, 271 Wis. 2d 585, 679 N.W.2d 553 (quoted source omitted). The cases pertinent to Robinson’s concluding there was no legitimate expectation of finality–e.g.Gruetzmacher or State v. Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42–involve a legal error or “slip of the tongue” that the court notices quickly (the same day) and takes steps to correct (the same day or next few days). In this case, the court of appeals found Robinson’s situation indistinguishable from Burt because the judge discovered its mistake the same day and recalled Robinson’s case the next.

But if a defendant has no expectation of finality when the case involves a quick correction of a mistake recognized by the court the same day of sentencing, then the judge actually has to have made some mistake. Here, the court’s statement that it “misheard” the information about Robinson’s sentences in the other cases doesn’t jibe with its sentencing remarks, during which the court accurately repeated the total overall sentence as (accurately) summarized by the prosecutor. In the absence of an actual mistake, the resentencing looks like the result of reflection, and Robinson’s expectation of finality is (or should be) much greater. (Indeed, Robinson’s petition notes this case appears to conflict with another decision of the court of appeals, State v. Crewz, No. 2007AP2381, unpublished slip op. (Wis. Ct. App. Nov. 5, 2008), which concluded Crewz had a legitimate expectation of finality in the sentence because it was not clear the court made a mistake at sentencing.) Thus, this case should clarify whether Gruetzmacher and Burt apply only to a true “slip of the tongue” or some other obvious, good faith error at the original sentencing hearing, and thus whether a defendant has a legitimate expectation of finality that protects against a judge’s mere rethinking of its decision or further investigation of the facts.

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