court of appeals decision; for Puchacz: William M. Hayes Resp Br OWI Enhancer, § 346.65(2) – Out-of-State Conviction Michigan convictions for driving while visibly impaired may be counted as Wisconsin OWI priors, given “broad interpretation and application of the final phrase in Wis. Stat. § 343.307(1)(d) and the public policy supporting our drunk driving laws,” ¶¶12-13… Read more
E. Enhancers
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42 For Warbelton: Paul G. LaZotte, SPD, Madison Appellate Issue/Holding: Evidence related to a penalty enhancer (such as a prior conviction in support of habitual criminality) is relevant only to sentence and “must be withheld from the jury’s knowledge,” ¶19, quoting Mulkovich v. State, 73 Wis. 2d 464… Read more
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion For Long: Joseph L. Sommers Issue/Holding: The “3-strike” persistent repeater enhancement, § 939.62(2m)(d), requires that the two prior strikes occur before the current felony and the 1st strike’s conviction date precede the 2nd strike’s violation date. Although Long’s two prior strikes occurred before… Read more
State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29 For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner Issue/Holding: ¶81 We conclude that the school zone penalty enhancer is not unconstitutional as applied to Quintana. The legislature has sought to increase the penalty for those who commit violent crimes within 1,000… Read more
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116 For LaCount: T. Christopher Kelly Issue: Whether, on a § 939.62(2) “prior-conviction” penalty enhancer, the defendant is entitled to jury resolution that the conviction was in fact within 5 years of commission of the present offense. Holding: ¶52 … (W)hen Shepard and Apprendi are read together, a trial court judge, rather than… Read more
State v. Shane P. Kashney, 2008 WI App 164 For Kashney: Paul G. LaZotte, SPD, Madison Appellate Issue/Holding: While State v. Patrick A. Saunders, 2002 WI 107 limits proof of a repeater enhancement to the “post-trial” setting, that limitation is satisfied if the State submits the proof after verdict (and before the court has pronounced judgment). ¶1… Read more
State v. Steven L. Pfeil, 2007 WI App 241 For Pfeil: John P. Tedesco, SPD, Madison Appellate Issue/Holding: Time spent in custody of the (now-lapsed) division of intensive sanctions tolls the limitation period for prior convictions, § 939.62(2): ¶2 …. We conclude that supervision under the intensive sanctions program constitutes “actual confinement” within the meaning of… Read more
State v. Gary J. Knapp, 2007 WI App 273 For Knapp: Cory C. Chirafisi Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order: ¶2 … Read more
