District III
April 3, 2015
To:
Hon. William M. Atkinson
Circuit Court Judge
Brown County Courthouse
P.O. Box 23600
Green Bay, WI 54305-3600
John VanderLeest
Clerk of Circuit Court
Brown County Courthouse
P.O. Box 23600
Green Bay, WI 54305-3600
David L. Lasee
District Attorney
P.O. Box 23600
Green Bay, WI 54305-3600
Timothy T. O'Connell
O'Connell Law Office
P.O. Box 1625
Green Bay, WI 54305-1625
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
James D. Davis 422002
Oshkosh Corr. Inst.
P.O. Box 3310
Oshkosh, WI 54903-3310
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. James D. Davis (L.C. # 2012cf1264) |
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Before Hoover, P.J., Stark and Hruz, JJ.
Our review of the record discloses an issue of arguable merit regarding the DNA surcharge. The sentencing court imposed the surcharge without indicating any exercise of discretion. That would be permissible for sentences imposed after January 1, 2014 under Wis. Stat. § 973.046(1r) if the effective date of the statute is constitutional. Several circuit court’s have ruled that the effective date is unconstitutional as an ex post facto law because it is an automatic penalty that runs from the date of sentencing rather than the date the crime was committed. That issue is currently pending in three cases on appeal. (State v. Elward, 2014AP2569-CR, State v. Radaj, 2014AP2496-CR and State v. Monahan, 2014AP2187-CR.) Because we cannot conclude that there is no arguable merit to any issue that could be raised in this appeal,
IT IS ORDERED that the no-merit report is rejected and this appeal is dismissed.
IT IS FURTHER ORDERED that, within thirty days of the date of this order, counsel shall file a motion in the circuit court regarding the DNA surcharge.
Diane M. Fremgen
Clerk of Court of Appeals