2009AP1399-CR State v. Nickel

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Sentencing
Modification; timeliness

A motion for sentence modification filed six years after the sentence was untimely.

“When a defendant moves to vacate a DNA surcharge, the defendant seeks sentence modification. Pursuant to Wis. Stat. § 973.19, a defendant may move for sentence modification within ninety days after sentencing. Nickel filed his motion more than six years after entry of his judgment of conviction on December 11, 2002, well outside the time limits imposed under § 973.19. While a defendant may obtain postconviction review of a sentence within the time limits of a direct appeal, see Wis. Stat. § 974.02 and Wis. Stat. Rule 809.30, Nickel’s deadline for pursuing a direct appeal expired twenty days after his sentencing when he failed to file a notice of intent to pursue postconviction relief, see State v. Lagundoye, 2004 WI 4, ¶20 and n.13, 268 Wis. 2d 77, 674 N.W.2d 526. Therefore, Nickel’s judgment of conviction became final when he did not challenge the conviction or the sentence within the deadlines for doing so. See id. (judgment of conviction is final after a direct appeal from that judgment and any right to a direct review of the appellate decision is no longer available). Despite Nickel’s contention to the contrary, Cherry does not give the trial court the authority to revise a sentence after a criminal conviction becomes final.”

Affirmed.

Recommended for publication in the official reports.

2009AP1399-CR State v. Nickel

Dist. II, Waukesha County, Dreyfus, J., Neubauer, J.

Attorneys: For Appellant: Nickel, Raymond Allen, pro se; For Respondent: Schimel, Brad, Waukesha; Burgundy, Sarah, Madison

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