COURT OF APPEALS DECISION DATED AND FILED May 17, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Christopher D. Smith, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Christopher D. Smith, pro se, appeals an order denying his motion to vacate a DNA surcharge imposed when he was sentenced in 2002. He contends the circuit court misused its discretion when it imposed the surcharge. We affirm.
¶2 Smith argues that the circuit court failed to adequately explain why the surcharge was imposed as required by State v. Cherry, 2008 WI App 80, ¶10, 312 Wis. 2d 203, 752 N.W.2d 393. In Cherry, we held that a circuit court is required to demonstrate on the record a proper exercise of discretion when imposing a DNA surcharge pursuant to Wis. Stat. § 973.046(1g) (2009-10).[1] See Cherry, 2008 WI App 80, ¶¶9-11.
¶3 We recently held that a motion to vacate a DNA surcharge
based on Cherry may not be brought after the time limits for filing
either a direct appeal under Wis. Stat.
Rule 809.30 or a motion for sentence modification under Wis. Stat. § 973.19 have
elapsed.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.