State v. Nickel
2010 WI App 161
Wis. Ct. App.2010Background
- Nickel pled guilty to second-degree recklessly endangering safety in a domestic abuse context on December 5, 2002 and was ordered to submit a DNA sample and pay a $250 DNA analysis surcharge under Wis. Stat. § 973.046(lg).
- The surcharge was imposed at sentencing with the vault note: 'since this is a felony' and is reflected on the judgment under conditions of sentence.
- Nickel did not appeal his 2002 conviction or sentence.
- On February 13, 2009, Nickel moved to eliminate the $250 surcharge relying on State v. Cherry; a hearing was held on May 21, 2009 and the court denied the motion, determining the surcharge was properly imposed and the costs ordered were appropriate.
- The trial court concluded Nickel’s motion was within sentencing court authority and upheld the surcharge under Wis. Stat. §§ 973.047(lf) and 973.046(lg).
- Nickel appeals, arguing the surcharge was improperly imposed and seek reversal or waivers; this court affirms the denial as untimely under Wis. Stat. § 973.19 and final judgment standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the motion to vacate surcharge | Nickel: motion timely under Cherry. | State: motion filed six years after judgment, untimely under § 973.19. | Untimely; affirmed. |
| Whether Cherry allows post-final-judgment sentence revision | Nickel relies on Cherry to revise after final judgment. | State: Cherry does not authorize revision after final judgment. | Cherry does not permit retroactive sentence revision. |
| DNA surcharge as part of sentence and authority to modify | Nickel contends surcharge may be challenged as misapplied. | State: surcharge is a proper component of the sentence and justified by costs. | Surcharge properly part of the sentence; no basis to modify. |
Key Cases Cited
- State v. Cherry, 312 Wis. 2d 203 (Wis. Ct. App. 2008) (requires on-record discretionary exercise when imposing DNA surcharge)
- State v. Amrine, 460 N.W.2d 826 (Ct. App. 1990) (appellate review may sustain trial court on theory not presented to it)
- State v. Lagundoye, 268 Wis. 2d 77 (Wis. 2004) (retroactivity generally limited to new rules)
- State v. Campbell, 718 N.W.2d 649 (Wis. 2006) (DNA surcharge authorized as part of sentence when imposing sentence)
- State v. Galvan, 736 N.W.2d 890 (Wis. App. 2007) (DNA surcharge is a financial obligation distinct from but related to sentence)
- State v. Franklin, 434 N.W.2d 609 (Wis. 1989) (new factor analysis and de novo review standards)
- State v. Noll, 258 Wis. 2d 573 (Wis. Ct. App. 2002) (inherent power to modify sentence not triggered by new factor in this context)
- Smith v. State, 271 N.W.2d 20 (Wis. 1978) (limits on postconviction challenges and timing)