Order for DNA sample and surcharge
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For Mathis: Donna Odrzywolski
We [District IV] certify this appeal to the Wisconsin Supreme Court pursuant to Wis. Stat. Rule 809.61 (2007-08), to resolve a conflict among the districts of the court of appeals that has arisen as a result of our decision in State v. Cherry, 2008 WI App 80, ¶¶8-9, 312 Wis. 2d 203, 752 N.W.2d 393. We require guidance on whether a circuit court that orders a defendant to provide a deoxyribonucleic acid (DNA) sample under Wis. Stat. § 973.047(1f) and at the same time orders the defendant to pay the DNA surcharge under Wis. Stat. § 973.046(1g), must state on the record its reasoning for imposing the surcharge . . .
A related issue presented by this appeal involves a regulation issued by the Department of Justice, Wis. Admin. Code § Jus 9.08 (Sept. 2001). It provides, in relevant part, that if a court orders a defendant to provide a DNA sample, then “the court shall impose a DNA analysis surcharge.” This regulation has been used to support the proposition that a circuit court has not erroneously exercised its discretion when it orders the surcharge without explaining its reasoning when the court is required to order the sample under Wis. Stat. § 973.047(lf).
District IV questions whether an administrative rule setting court fees is outside the scope of the rulemaking authority conveyed to the Department of Justice by Wis. Stat. § 973.047(2), and whether the rule is invalid because it conflicts with the current statute by making the surcharge mandatory under circumstances in which Wis. Stat. § 973.046(1g) has made the surcharge discretionary. While the regulation has been used to support the position taken by Districts I, II, and III, those districts do not believe that the regulation is necessary to support the position that the circuit court has not erroneously exercised its discretion by imposing the surcharge without further explanation when the court orders that a sample be provided under § 973.047(1f). Guidance on whether the regulation is valid, however, would also be helpful to the court of appeals and to the circuit courts.
