1st-degree child sexual assault — minimum sentence

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Wisconsin Court of Appeals

Criminal

1st-degree child sexual assault — minimum sentence

A court cannot impose probation for 1st-degree child sexual assault, but must impose the 25-year mandatory minimum period of confinement.

“[W]e are convinced that by labeling WIS. STAT. § 939.616 a ‘mandatory minimum sentence’ statute and stating that ‘the court shall impose a bifurcated sentence’ and that ‘[t]he term of confinement in prison portion of the bifurcated sentence shall be at least 25 years,’ § 939.616(1r), the legislature has clearly prohibited probation. This is the ordinary interpretation of such language. Also, in the very next statute, the legislature removed the word ‘mandatory’ from the title and expressly stated that for ‘certain child sex offenses’ probation was sometimes available. It does not make sense that, as Lalicata claims, the legislature at the same time intended to imply, silently, in the immediately preceding statute, that probation is likewise available for the more serious crime of first-degree child sexual assault. While it is true that the legislative intent would be even clearer if § 939.616 contained the express language that is included in WIS. STAT. §§ 939.618 and 939.619, i.e., ‘[t]he court may not place the defendant on probation,’ nothing in WIS. STAT. § 973.09(1)(a) makes such language the sole way to ‘prohibit’ probation. We conclude instead that § 939.616(1r) unambiguously prohibits probation, within the meaning of § 973.09, when it directs that the court ‘shall’ impose a term of confinement of at least twenty-five years.”

Affirmed.

Recommended for publication in the official reports.

2012AP225-CR State v. Lalicata

Dist. II, Washington County, Gonring, J., Brown, J.

Attorneys: For Appellant: York, Katie R., Madison; For Respondent: Tarver, Sandra L., Madison; Bensen, Mark, West Bend