Sentencing – misdemeanors – enhancers — bifurcated sentences

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Wisconsin Court of Appeals

Criminal

Sentencing – misdemeanors – enhancers — bifurcated sentences

Section 973.01(2)(c)1. is inapplicable to misdemeanors

“One can see how this statutory framework creates confusion since the penalty enhancement statutes and WIS. STAT. § 973.01 simply refer to ‘penalty enhancement’ in general. It would have been nice had the legislature put the misdemeanor penalty enhancements in a different statute and explained the process for them. We think draftsmanship, or the lack of it, is what has sowed confusion. This court, however, has reached the conclusion in several unpublished cases that subd. (2)(c)1. does not apply to misdemeanor cases. See State v. Smith-Iwer, No. 2013AP1426-CR, unpublished slip op. (WI App Dec. 27, 2013); State v. Groce, No. 2013AP844-CR, unpublished slip op. (WI App Sept. 4, 2013); State v. Robinson, 2012AP2498-CR, unpublished slip op. (WI App July 23, 2013). In Groce, the court found that § 973.01(2)(c), ‘on its face, only applies to felonies.’ Groce, No. 2013AP844-CR, ¶12.”

“We think that Groce was on the right track. Under the applicable statutory provisions addressing a misdemeanor crime, a penalty enhancer performs an additional function beyond just adding time. Therefore, a different procedure applies than with felonies. Whereas for a felony, an enhancement lengthens the otherwise applicable ‘maximum term of confinement in prison,’ for a misdemeanor, an enhancement transforms the misdemeanor sentence into a sentence to the state prisons, which then must be bifurcated. Because no ‘maximum term of confinement in prison’ exists for a misdemeanor until the enhancement is applied, once it is applied, it cannot be applied again. WIS. STAT. §973.01(2)(c)1. is not applicable to misdemeanors.”

Affirmed.

Recommended for publication in the official reports.

2012AP2016-CR State v. Lasanske

Dist. II, Waukesha County, Domina, J., Brown, J.

Attorneys: For Appellant: Haskell, Dustin C., Milwaukee; For Respondent: Pray, Eileen W., Madison; Hulgaard, Michele Whitsitt, Waukesha