District II
January 16, 2013
To:
Hon. Richard J. Nuss
Circuit Court Judge
Fond du Lac County Courthouse
160 S. Macy St.
Fond du Lac, WI 54935
Ramona Geib
Clerk of Circuit Court
Fond du Lac County Courthouse
160 S. Macy St.
Fond du Lac, WI 54935
Eric Toney
Fond du Lac County District Attorney
160 South Macy Street
Fond du Lac, WI 54935
Christine A. Remington
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Jamie L. Carr 461374
Kettle Moraine Corr. Inst.
P.O. Box 282
Plymouth, WI 53073-0282
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Jamie L. Carr (L.C. # 2004CF48) |
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Before Brown, C.J., Neubauer, P.J., and Reilly, J.
Jamie L. Carr appeals pro se from an order denying his Wis. Stat. § 974.06 postconviction motion to vacate the DNA surcharge allegedly imposed at sentencing. Carr argues that the trial court erred by denying his postconviction motion without first holding an evidentiary hearing to determine whether trial counsel’s failure to object to the DNA surcharge constituted ineffective assistance of counsel. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21 (2009-10).[1]
Upon Carr’s burglary conviction, the sentencing court ordered that he provide a DNA sample. Carr filed a Wis. Stat. § 974.06 motion alleging that the sentencing court imposed a DNA analysis surcharge pursuant to §973.046(1g), and that the court failed to adequately explain its rationale on the record. In its written order denying Carr’s § 974.06 motion, the trial court concluded that the imposition of the DNA surcharge at sentencing was an appropriate exercise of discretion. However, as pointed out in the State’s brief, no DNA surcharge was actually ever ordered or imposed in connection with this case.
Where a defendant is convicted of a felony, the trial court must order that he or she provide a DNA sample. See Wis. Stat. § 973.047(1f). The trial court may also in its discretion impose a $250 DNA analysis surcharge, and should explain its rationale on the record. See §973.046(1g); State v. Cherry, 2008 WI App 80, ¶5, 312 Wis. 2d 203, 752 N.W.2d 393. Carr’s claim confuses the provision of a DNA sample with the imposition of a DNA surcharge. While the sentencing court ordered that Carr was “required to provide a DNA sample” it never imposed the discretionary DNA surcharge. Trial counsel therefore did not perform deficiently by failing to object to a surcharge never ordered, and we affirm the trial court’s order.[2]
Upon the foregoing reasons,
IT IS ORDERED that the order of the trial court is summarily affirmed pursuant to Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals