DNA sample not prerequisite for surcharge

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"Nothing in sec. 973.046(1g) requires a DNA sample to be collected before the court can order the payment of the surcharge." Hon. Patricia S. Curley Wisconsin Court of Appeals

A felon can be ordered to pay the DNA surcharge, even if he has already provided a DNA sample for a previous felony, the Wisconsin Court of Appeals held on Oct. 12.

Franciollo L. Jones was convicted of delivery of cocaine, as a party to the crime. Milwaukee County Circuit Court Judge Michael B. Brennan sentenced him to 20 months’ initial confinement, followed by 18 months of extended supervision. At the sentencing hearing, the court ordered Jones to submit a DNA sample and to pay the DNA surcharge.

Jones brought a postconviction motion, requesting that the trial court delete the requirement for submission of a DNA sample and vacate the ordered surcharge, as he had already submitted a sample. Jones provided a letter from the State Crime Laboratory indicating it needed only one sample per subject. However, Judge Timothy G. Dugan refused to rescind the order requiring Jones to pay the surcharge unless Jones could prove that he had paid the surcharge in the earlier case. Jones appealed, but the court of appeals affirmed in a decision by Judge Patricia S. Curley.

Section 973.047 mandates that trial courts require anyone convicted of a felony to provide a DNA specimen. Section 973.047 reads in relevant part: "(1f) If a court imposes a sentence or places a person on probation for a felony conviction, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis."

Section 973.046 gives the trial court discretion to impose a DNA surcharge on persons convicted of most felonies, but mandates the surcharge upon conviction for violation of secs. 940.225, 948.02(1) or (2), or 948.025. The statute provides in relevant part, "(1g) Except as provided in sub. (1r), if a court imposes a sentence or places a person on probation for a felony conviction, the court may impose a deoxyribonucleic acid analysis surcharge of $250. … (1r) If a court imposes a sentence or places a person on probation for a violation of s. 940.225, 948.02 (1) or (2) or 948.025, the court shall impose a deoxyribonucleic acid analysis surcharge of $250."

The court concluded that the trial court acted within its discretion in ordering the surcharge, even in the absence of an order that he provide a sample.

The trial court had reasoned as follows: "The court will not vacate a surcharge unless a showing is made that the defendant previously paid a surcharge in another case.

The court has the statutory authority to order a defendant to pay for the testing performed by the State Crime Lab by assessing a $250 surcharge. Section 973.046(1g), Wis. Stats. If the defendant has already provided a sample and paid a surcharge in conjunction with another case, the court will vacate a second order for a DNA surcharge. If the defendant cannot show that he has paid a surcharge in connection with the first DNA sample ordered, the court will not vacate the $250 surcharge. The defendant, rather than the taxpayers, shall pay for the DNA testing."

The court of appeals adopted the reasoning, noting, "The language of the statute plainly states that the trial court has the discretion to order a DNA surcharge upon the entry of a judgment in this felony case. Nothing in sec. 973.046(1g) requires a DNA sample to be collected before the court can order the payment of the surcharge."

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The court rejected Jones’ argument that the two statutes must be read together. The court acknowledged that two cases hold as much: State v. Ward, 228 Wis. 2d 301, 596 N.W.2d 887 (Ct.App.1999); and State v. Trepanier, 204 Wis. 2d 505, 555 N.W.2d 394 (Ct.App.1996). The court concluded those cases are no longer controlling, however, because they rely on prior versions of the statutes.

The former sec. 973.046 explicitly provided that an order that a defendant provide a DNA specimen, pursuant to sec. 973.047, was a prerequisite for imposition of the surcharge. The court concluded, "Clearly, the earlier version o
f sec. 973.046 expressly referred to sec. 973.047(1). Indeed, this is the reason that Trepanier construed these statutes together. These statutes were amended, however, before Jones was convicted. As we have seen, the current version of sec. 973.046 no longer refers to sec. 973.047 (cites omitted)."

Accordingly, the court found that the circuit court properly exercised its discretion in imposing the surcharge, and affirmed.

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David Ziemer can be reached by email.