COURT OF APPEALS DECISION DATED AND FILED May 4, 2010 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. Roosevelt Cardine, Jr., Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Roosevelt Cardine, Jr., pro se, appeals from an order denying his motion to reconsider an order denying his request to “quash” a DNA surcharge. We dismiss the appeal for lack of jurisdiction.
¶2 In September 2004, Cardine was convicted of armed robbery with the threat of force and false imprisonment, based upon his guilty plea. He was sentenced to concurrent terms of imprisonment, with the longer term consisting of twelve years’ initial confinement and twelve years’ extended supervision. Cardine was also ordered to submit a DNA sample and pay a $250 surcharge. Cardine did not appeal.
¶3 On April 8, 2008, this court released its opinion in State v. Cherry, 2008 WI App 80, ¶¶9-10, 312 Wis. 2d 203, 752 N.W.2d 393, requiring a circuit court to demonstrate the exercise of discretion when imposing a DNA surcharge under Wis. Stat. § 973.046(1g) (2007-08).[1] On December 8, 2008, Cardine moved the circuit court to “quash DNA surcharges” and to refund the $250 he had already paid, claiming an erroneous exercise of discretion by the sentencing court. The court denied the motion on December 10, 2008, noting that Cardine’s appellate rights had expired in 2004, foreclosing his challenge. On February 20, 2009, Cardine moved for reconsideration of the denial of the motion to quash. The court denied the motion for reconsideration on February 23.
¶4 Cardine appealed. The
notice was dated March 7, 2009, but was not filed in the circuit court until
March 19. See Wis. Stat. Rule
809.10(1)(a) (appeal initiated by filing notice with clerk of circuit
court). By order dated April 23,
2009, this court noted that Cardine had ninety days from December 10,
2008, to appeal the order denying the motion to quash the surcharge. Thus, the March 19 notice of appeal was
untimely as to that order. We noted,
however, that the “prison mailbox tolling rule” might apply and, if Cardine had
given his properly addressed notice of appeal to prison officials for mailing
prior to expiration of the ninety-day time frame, his appeal might be timely.
¶5 Cardine responded not by showing that he timely submitted his
notice of appeal for mailing, but by stating that his appeal was actually an
appeal from the February 23, 2009 order denying his reconsideration motion.[2] However, a motion for reconsideration
ordinarily does not affect the time for appeal, see Continental Cas. Co. v.
533-35, 499 N.W.2d 282 (Ct. App. 1993), and appeal cannot be taken from an
order denying a motion for reconsideration that presents the same issues as
those determined in the order sought to be reconsidered, see Silverton Enters., Inc. v.
General Cas. Co., 143
¶6 When no appeal is taken from a judgment or order within prescribed
time limits, error in that judgment or order cannot be reached by appeal of an
order denying a motion to set it aside. See Ver Hagen v. Gibbons, 55
¶7 Cardine’s motion to quash the DNA surcharge was denied because Cardine’s appellate rights had expired and, as such, any challenge to the circuit court’s sentencing discretion was untimely. Cardine’s motion for reconsideration, although he attempts to reframe his argument as a constitutional challenge, raises the same issue: whether, in light of Cherry, the circuit court properly exercised its sentencing discretion when imposing the DNA surcharge. Because the motion for reconsideration raised no new issue, Cardine was required to timely appeal from the December 10, 2008 order denying the motion to quash. He did not, so this court has no jurisdiction over the appeal.[3]
By the Court.—Appeal dismissed.
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] The notice of appeal had also indicated Cardine was appealing from a March 2008 order denying a request for transcripts. We noted any appeal from that order was untimely and dismissed that portion of the appeal. In response to the court’s dismissal order, Cardine indicated that he was not appealing the order denying transcripts. In his appellate brief, Cardine again requests an order for the production of transcripts. We do not address any arguments on this previously dismissed issue.
[3] We
would, alternatively, reject Cardine’s appeal on the merits. First, Cardine’s judgment of conviction
became final on December 8, 2004, when his Wis.
Stat. Rule 809.30 appellate rights expired. State v. Cherry, 2008 WI App 80, 312
Second, a challenge to the DNA surcharge at this stage is a call for sentence modification. However, the statutory time limits of Wis. Stat. Rule 809.30 and Wis. Stat. § 973.19 have expired; sentence modification is not available through a Wis. Stat. § 974.06 motion, see Smith v. State, 85 Wis. 2d 650, 661, 271 N.W.2d 20 (1978); and Cherry’s call for the exercise of discretion can hardly be viewed as a “new factor” that would frustrate the purpose of the circuit court’s original sentence, see State v. Champion, 2002 WI App 267, ¶4, 258 Wis. 2d 781, 654 N.W.2d 242.
Finally, to the extent Cardine is attempting to raise
an as-applied constitutional challenge, any such claim is conclusory and
underdeveloped. Statutes are presumed
constitutional, and Cardine thus has the burden to show the statute permitting
imposition of the DNA surcharge is unconstitutional beyond a reasonable
doubt. See State v. Smith, 2009 WI App 16, ¶4, 316