01-1155 State v. Jones

Listen to this article

“The State’s interpretation of Wis. Stat. § 973.01(2)(c) is textually impermissible. First, the State’s interpretation is feasible only if the sentencing court divides the penalty enhancer evenly between confinement and supervision. If, for example, the penalty enhancer is five years, the sentencing court could not extend the confinement three years and the supervision two years, because they are not ‘the same amount.’ Here, the trial court extended the term of confinement by three years and the period of extended supervision by only two years. Therefore, even under the State’s interpretation of § 973.01(2)(c), the trial court violated the statute because it failed to increase the term of confinement and the period of extended supervision ‘by the same amount.’…

Further, “Wis. Stat. § 973.01(2)(a) states that the total bifurcated sentence may only be extended as provided by § 973.01(2)(c). Subsection (2)(c) states that the term of confinement may be increased, but never refers to the period of extended supervision. The State’s interpretation violates a well-established principle of statutory construction: expressio unius est exclusio alterius. Under this principle, ‘the enumeration of specific alternatives in a statute is evidence of legislative intent that any alternative not specifically enumerated is to be excluded.'”

Judgment and order reversed and cause remanded.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Konkol, J., Curley, J.

Attorneys:

For Appellant: Paul G. LaZotte, Madison

For Respondent: Robert D. Donohoo, Milwaukee; Edwin J. Hughes, Madison