Sentencing — DNA surcharge

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Wisconsin Court of Appeals

Criminal

Sentencing — DNA surcharge

A circuit court may not order a defendant to pay the DNA analysis surcharge on the basis that the defendant might in the future commit a crime that would generate costs for DNA analysis.

“We conclude it is not a permissible rationale because it is based on an unreasonable reading of the statute. WISCONSIN STAT. § 973.046 plainly authorizes a circuit court to impose a surcharge—either a mandatory surcharge under § 973.046(1r) for the crimes specified there or a discretionary surcharge under § 973.046(1g) for all felonies not included in subsection (1r)—even if a person has previously been ordered to provide a DNA specimen pursuant to WIS. STAT. § 973.047(1f). See State v. Jones, 2004 WI App 212, ¶¶7-11, 277 Wis. 2d 234, 689 N.W.2d 917 (rejecting the defendant’s argument that §§ 973.046 and 973.047 do not permit the circuit court to impose a surcharge unless a DNA specimen is ordered in the same case; affirming as a proper exercise of the court’s discretion an order that the defendant pay the surcharge unless he shows he paid it in another case). Indeed, there is nothing in the language of either § 973.046 or § 973.047 that prevents a surcharge from being imposed as part of the sentence for the later crime, even if a surcharge has already been imposed and paid in one or more prior cases, if additional costs for DNA analysis are incurred in the later case.”

Reversed and Remanded.

Recommended for publication in the official reports.

2011AP2220-CR State v. Simonis

Dist. IV, Portage County, Finn, J., Vergeront, J.

Attorneys: For Appellant: Harvey, Chandra N., Madison; For Respondent: Knaapen, David R., Stevens Point; Probst, Robert, Madison