Wisconsin Criminal Law & Process – Page 24 – Marquette University Law School Faculty Blog

Prior Conviction as an Element of a Crime: The Effect of Stipulations After State v. Warbelton

Post author:Brent Simerson
Post published:July 6, 2009
Post category:Criminal Law & Process Wisconsin Criminal Law & Process Wisconsin Supreme Court

In January of this year, the Wisconsin Supreme Court unanimously affirmed the defendant’s conviction for stalking in State v. Warbelton, 2009 WI 6, 759 N.W.2d 557. In doing so, the court held that a defendant in a stalking case cannot prevent the State from submitting evidence of the existence of the defendant’s prior violent felony conviction, an element of the crime, by stipulating to the conviction before trial.

Stipulations to prior convictions became a powerful tool for defense attorneys in Wisconsin following State v. McAllister, 153 Wis. 2d 523, 451 N.W.2d 764 (Ct. App. 1989). A precursor to the United States Supreme Court’s ruling in Old Chief v. United States, the McAllister court held that the State could not submit evidence of the details of the defendant’s prior felony conviction if the defendant offered to stipulate to that element before trial. The court concluded that the details of the conviction were no longer relevant once the defendant stipulated to it. The State could satisfy the element by submitting a certified record of the defendant’s conviction to the jury.

The court in State v. Alexander addressed the derivative question left by McAllister: may the defendant completely prevent the jury from considering the prior conviction element by stipulating to the prior conviction before trial?

Explaining Sentences in Wisconsin and Federal Court

Post author:Michael M. O'Hear
Post published:July 1, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Legal Scholarship Wisconsin Criminal Law & Process Wisconsin Supreme Court

I have a new paper on SSRN entitled “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences.” As I observed in a recent post, I’ve become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences. My forthcoming article in the Florida State Law Review focuses on “explanation review” in the federal system. The new paper focuses on the contrasting experience in Wisconsin and proposes a general framework for explanation review that blends the best features of the Wisconsin and federal systems.

As I see it, the basic flaw of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range. In a sense, the basic flaw of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines (or any other objective benchmark); little more is required than an explanation that expressly invokes the purposes of punishment and references a few case-specific facts. My proposal seeks to promote engagement with both guidelines and purposes.

I presented the paper earlier this month at the Marquette Criminal Appeals Conference. It will appear in a symposium issue of the Marquette Law Review this winter. The abstract appears after the jump.

Wisconsin Supreme Court Accepts Three New Cases, Including a Case That Will Determine Whether a Crime with No Sexual Component May Trigger Sex Offender Registration Requirements

Post author:Jessica E. Slavin
Post published:March 25, 2009
Post category:Criminal Law & Process Tort Law Wisconsin Civil Litigation Wisconsin Criminal Law & Process Wisconsin Law & Legal System Wisconsin Supreme Court

Supreme Court seal Today the Wisconsin Supreme Court accepted three new cases for review, two criminal cases and one civil case.

One of the criminal cases, State v. Smith, 2008AP1011, asks the court to determine whether the sex offender registration statute, Wisconsin Statute section 301.45, is unconstitutional in its application to a defendant whose crime, false imprisonment of a minor, concededly had no sexual component whatsoever. The Defendant Smith was convicted of falsely imprisoning a minor in connection with a drug crime. That conviction triggered application of the sex offender registration requirements in section 301.45. Smith did not register, and was charged with failing to register as required. He argues that the sex offender registration requirement violates his due process and equal protection rights because his crime had no sexual component.