On Point

State v. Joseph Scaccio III, 2000 WI App 265, 240 Wis.2d 95
For Scaccio: Jim D. Scott

Issue: Whether Scaccio’s motion to modify a sentencing imposed after revocation was untimely because he failed to appeal the original judgment of conviction.

Holding/Analysis: The principle is readily stated — you can take a direct appeal of a sentence imposed after revocation — but a certain amount of elaboration is unfortunately required. Scaccio was originally placed on probation (hence, entry of judgment of conviction #1). He was later revoked and sentenced (leading to JOC #2). He moved to modify the sentence imposed after revocation, on the basis of both new factors and erroneous exercise of discretion, only to run into a fairly bizarre waiver-type claim: “The backbone of the State’s position is that the time to initiate a direct appeal under Rule 809.30 runs from the original judgment of conviction only.” ¶6. The state’s argument is, to be polite, strained, for the simple reason that you’ve got the right to appeal any final order, which JOC #2 undeniably is. It’s certainly true that you’re limited to challenging the new event embodied by JOC #2, the sentencing after revocation, but that’s all Scaccio’s attempting to do. And that is, indeed, just how the court of appeals (properly) resolves the issue:

¶10 The rule we derive from Drake and Tobey is that a defendant cannot use WIS. STAT. RULE 809.30 in conjunction with WIS. STAT. § 973.19(1)(b) to raise issues that go back to the original judgment of conviction. A challenge to a post-revocation sentence does not bring the original judgment of conviction before the court. See Drake, 184 Wis. 2d at 399-400. However, the decisions in Drake and Tobey do not preclude a defendant from taking a direct appeal from a subsequent judgment of conviction. A defendant facing a new judgment after revocation of probation must have an opportunity to fully litigate issues initially raised by the events of the resentencing hearing and the judgment entered after that hearing.

So far, so good. But keep in mind that the main question is whether Scaccio has a new factor that would justify modification of sentence. And, although you’d never know it from reading this opinion, a trial court has inherent authority to modify sentence on the basis of new factors, at any time. See generally State v. Krueger, 119 Wis. 2d 327, 332, 351 N.w.2d 738 (Ct. App. 1984). In other words, this whole discussion about timeliness is irrelevant in relation to new factors. Worse, the court’s discussion may lead to the (wrong) conclusion that a new factor must be raised under, and within time limits of, R. 809.30. When the court finally gets around to Scaccio’s proffered new factors the result is anticlimactic. Most relate to favorable progress in prison, something that can’t constitute a new factor as a matter of law. ¶15. As for sentencing discretion, “a five year prison term for second-degree sexual assault of a child will rarely constitute an erroneous exercise of discretion.” This case isn’t the exception. ¶18.

State v. Thomas W. Jackson, 233 Wis.2d 231, 607 N.W.2d 338 (Ct. App. 2000)
For Jackson: Martha K. Askins, SPD, Madison Appellate

Issue: Whether a defendant is entitled to sentence credit on each consecutive sentence.

Holding: Credit is allotted only toward the first of consecutive sentences.

While on probation in Fond du Lac, Jackson was arrested on new charges in Dodge, where he was held on both the new charges and a probation hold. He was convicted and sentenced on the Dodge case, and received sentence credit from the date of arrest (and probation hold). He was then convicted on the Fond du Lac case, and got probation with a withheld sentence. He was later revoked and sentenced, by which time he’d already discharged the Dodge sentence. The question is whether he’s entitled to credit in the Fond du Lac case for time spent (and credit already received) before revocation in the Dodge case. The court says no. The issue was reserved by State v. Beets, 124 Wis. 2d 372, 378 n.5, 369 N.W.2d 382 (1985), and is controlled by the rationale of State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), which holds that credit can’t be given to more than one of consecutively imposed sentences. Jackson’s Fond du Lac sentences were not made explicitly consecutive, but the court deems them to be consecutive in effect, because the Dodge sentence had been completed at the time of Fond du Lac sentencing. Because he received full credit for the time at issue in the Dodge case, awarding this credit to the Fond du Lac case would amount to impermissible “dual credit for the same custody.”

State v. Dennis E. Scott, 2000 WI App 51, 234 Wis. 2d 129, 608 N.W.2d 753
For Scott: Joseph E. Redding

Issue: Whether right to review of a motion to dismiss at the close of the state’s case waived by failing to object to the trial court’s delay in ruling until after the defense presents its case.

Holding: Although “the better practice is for trial courts to decide the motion at the close of the State’s case,” the defense does not waive its right of review of the motion if the trial court defers ruling until after the defense case, ¶¶9-10.

State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
For Leighton: Daniel Snyder

Issue/Holding:

¶55 WISCONSIN STAT. § 973.20, governing restitution in criminal cases, “provides that a trial court ‘shall order the defendant to make full or partial restitution under this section to any victim of a crime,’ when imposing a sentence or probation for any crime.” State v. Hopkins, 196 Wis. 2d 36, 42, 538 N.W.2d 543 (Ct. App. 1995). In Hopkins, the presentence investigation report indicated certain restitution amounts. See id. at 41. At sentencing, neither the State nor the defendant mentioned restitution; however, when the trial court imposed its sentence, it also ordered restitution consistent with the amounts noted in the presentence report. See id. at 43-44. The defendant did not object to the restitution, and the trial court entered the judgment of conviction. See id. It was not until postconviction motions that the defendant sought to vacate the restitution order. See id. The Hopkins court recognized:

[I]n the absence of any objection to amounts claimed on a court-ordered restitution summary accompanying a presentence investigation, where a defendant has been given notice of the contents of that report and summary, the trial court is entitled to proceed on the understanding that the claimed amount is not in dispute, and so order restitution under [§] 973.20(13) ….

Id. at 42 (quoting State v. Szarkowitz, 157 Wis. 2d 740, 749, 460 N.W.2d 819 (Ct. App. 1990)).¹³ Because Hopkins received notice via the presentence report and further, failed to contest restitution at sentencing, this court determined that “[h]is failure to contest the issue at sentencing constituted a ‘constructive’ stipulation to the restitution order.” Id. at 44.

¶56 Here, Leighton first contested restitution in postconviction proceedings. Although the presentence investigation report did not specify an amount, it noted that a “substantial amount of restitution is expected.” At the sentencing hearing, the State specified the restitution amounts requested, including $27,146 for the property damage to Clark’s residence. In his argument at sentencing, Leighton never objected to this restitution amount, never requested a restitution hearing under WIS. STAT. § 973.20(13), and never objected when the court ordered restitution in the amount requested. Although Leighton did not receive notice of the specific restitution amount via the presentence report, he was on notice that a substantial amount of restitution was expected. He does not dispute that he failed to contest the restitution amount at sentencing. Accordingly, we conclude that Leighton constructively stipulated to the restitution order. See id. The trial court did not, therefore, err in setting the restitution amount.

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¹³ WISCONSIN STAT. § 973.20(13)(c) provides in relevant part:

The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. The court shall give the defendant the opportunity to stipulate to the restitution claimed by the victim and to present evidence and arguments on the factors specified in par. (a). If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation. (Emphasis added.)

In State v. Szarkowitz, 157 Wis. 2d 740, 749, 460 N.W.2d 819 (Ct. App. 1990), this court held that “[t]he use of the word ‘stipulate’ in [§] 973.20(13)(c) does not imply a requirement of a formal written stipulation, signed by the defendant, as to the amount of restitution claimed.”

State v. Aaron Evans, 2000 WI App 178, 238 Wis.2d 411, 617 N.W.2d 220
For Evans: Steven D. Phillips, SPD, Madison Appellate

Issue: Whether the sentencing court may allow the department of corrections to determine the amount of restitution.

Holding: Delegating determination of restitution to DOC isn’t authorized by statute and is therefore inappropriate: “Restitution is a statutory process and where, as here, a court constructs its own procedure to determine and set restitution-and that procedure is not authorized by the applicable and controlling law, the decision cannot stand.” ¶15. (Note: the procedure invalidated by the court of appeals is described as “standard Milwaukee County procedure.” ¶11.)

State v. Carl Simonetto, 2000 WI App 17, 232 Wis.2d 315, 606 N.W.2d 275
For Simonetto: Christopher L. Hartley

Issue: Whether the trial court erred in holding open restitution until certain victims could be identified.

Holding: “Section 973.20(13)(c), Stats., creates a ninety-day maximum hold-open period for entry of restitution after a sentence is imposed.” ¶10. (Note: The holding is probably more limited than the quote implies. In particular, it probably means that a court can’t hold restitution open past the 90 days in order to identify a victim. Otherwise, “the time period within sec. 973.20(13)(c)2 is directory.” State v. Perry, 181 Wis.2d 43, 56, 510 N.W.2d 722 (Ct. App. 1993).”)

State v. Chad J. Knoll, 2000 WI App 135, 237 Wis.2d 384, 614 N.W.2d 20

Issue: Whether contributory negligence is a defense to restitution.

Holding: ¶¶16, 17:

Restitution is not a claim that is owned by an individual but a remedy of the State…. To allow a defendant who has already been convicted of a crime to focus on the action of a victim to avoid restitution defeats this purpose because it permits him to evade responsibility for his own actions…. Second, bringing the issue of contributory negligence into a restitution proceeding, which by its nature is informal and not a full-blown civil trial, is inconsistent with the nature of the proceedings…. Therefore, we conclude that Knoll may not raise Foust’s contributory negligence as a defense to restitution.