COURT OF APPEALS DECISION DATED AND FILED June 23, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Adrian T. Hipp, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. In 2002, Adrian T. Hipp was
convicted of fraudulent use of a credit card and theft. At sentencing, the court ordered that Hipp
“give a D.N.A. sample” and that “[c]osts of it are assessed on extended
supervision.” On July 30, 2008, Hipp
filed a motion to vacate the DNA surcharge.
The circuit court denied the motion as not timely filed. Hipp filed a second motion that argued that
the case of State v. Cherry, 2008 WI App 80, 312
¶2 We first address the circuit court’s initial order. When moving to vacate a DNA surcharge, a
defendant is moving to modify his or her sentence. A motion for sentence modification must be
brought within ninety days of sentencing under Wis. Stat. § 973.19(1)(a) (2007-08),[1]
or within appellate time limits set forth in Wis.
Stat. Rule 809.30.
¶3 After his first motion was denied, Hipp filed a second
motion, pursuant to Wis. Stat. § 974.06,
in which he argued that Cherry was a “new factor” that
warranted sentence modification. The
circuit court denied the motion because a sentence modification motion cannot
be raised in a § 974.06 motion.
¶4 On appeal, Hipp calls the reference to Wis. Stat. § 974.06
“mistaken.” Rather, Hipp now relies
expressly upon a “new factor” argument.[2] Hipp does not, however, set forth any
argument as to why Cherry would be a new factor.[3] Arguments unsupported by legal authority will
not be considered.[4] State v. Pettit, 171
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] A
motion for sentence modification based upon a “new factor” can be made at any
time. See State v. Noll, 2002
WI App 273, ¶12, 258
[3] Hipp
includes in his appendix several circuit court orders addressing motions to
vacate DNA surcharges. This court can
only review matters of record in the trial court and cannot consider new matter
attached to an appellate brief outside the record. South Carolina Equip. Inc. v. Sheedy,
120
[4] Even
if we were to consider a “new factor” argument, it would fail. A new factor must be “‘highly relevant’” to
the imposition of sentence and must “frustrate[] the purpose” of the
sentence. State v. Michels, 150