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State v. Tabitha A. Scruggs, 2014AP2981-CR, petition for review granted 3/7/16

Review of a published court of appeals decision; case activity (including briefs)

Issue (composed by On Point):

Does the constitutional prohibition against ex post facto laws bar the mandatory imposition of a DNA surcharge for a single felony conviction based on conduct that was committed before the mandatory DNA surcharge requirement took effect?

We all know there’s been a good amount of litigation about whether 2013 Wis. Act 20’s mandatory DNA surcharge violates the ex post facto clause when the surcharge is assessed for the conviction of a crime committed before Act 20 took effect on January 1, 2014. The results have varied, depending on whether the crime of conviction was a misdemeanor (State v. Elward); whether there were multiple surcharges or just one (State v. Radaj); or whether the surcharge was for a felony where the surcharge would have been discretionary under the law in effect before Act 20—which is the scenario posed by this case. The court of appeals held concluded there was no ex post facto violation; we describe (and criticize) the court’s reasoning in this post. The supreme court will now weigh in on the question. Note that the court’s decision in this case may affect, for good or ill, at least one other significant issue raised by the mandatory DNA surcharge: Namely, does it violate the ex post facto clause to mandate an assessment from defendants who are sentenced after January 1, 2014, and who already provided a DNA sample and/or paid a DNA surcharge in a previous case? Stay tuned!

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