COURT OF APPEALS DECISION DATED AND FILED October 26, 2010 A.
John Voelker Acting 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. Jose Antonio Alicea, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Jose Antonio Alicea, pro se, appeals an order denying his
motion to modify his sentence as untimely.
He challenges the DNA surcharge imposed by the circuit court, arguing
that the circuit court failed to adequately explain why it was imposed.
¶2 Alicea devotes a sizable portion of his brief to arguing what his motion was not meant to be. He contends his motion was not brought under Wis. Stat. § 973.19 (2007-08),[1] which allows sentence modification within ninety days of sentence, or under Wis. Stat. § 809.30, the direct appeal statute, so the circuit court’s ruling that his motion was untimely under those statutes is of no import. Alicea also contends that he did not bring his motion under Wis. Stat. § 974.06, which does not permit challenges to the circuit court’s sentencing discretion, and he contends that his motion does not argue that the Cherry decision constitutes a “new factor” allowing resentencing, an analysis we have rejected before in other cases. Instead, Alicea contends that his motion is brought pursuant to the inherent authority of the circuit court, as provided in State v. Noll, 2002 WI App 273, ¶12, 258 Wis. 2d 573, 653 N.W.2d 895, and therefore may be brought at any time.
¶3 Alicea misreads Noll. That case provides no authority for the
proposition that motions to modify a sentence may be brought at any time
pursuant to the inherent authority of the circuit court. Noll provides that a circuit court
may invoke its inherent authority to modify a sentence without regard to time
limitations “only if a defendant demonstrates the existence of a ‘new factor’
justifying sentence modification.”
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.