State v. SepulvedaState v. Sepulveda
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(on motion for reconsideration). The defendant’s motion for reconsideration is denied. The defendant’s motion asserts that the effect of the court’s decision is to incarcerate the defendant in state prison for three years as a condition of probation under sec. 973.09 (4), Stats. We disagree. This case does not stand for the proposition that a trial court may impose incarceration in a state prison for three years as a condition of probation.
By affirming the trial court, this court approved the modification of sentence imposed by the trial judge. As stated in the concurring opinion, the imposition of probation was a nullity upon the impossibility for the condition of probation to be satisfied. The trial court, given the impossibility of fulfillment, was then free to modify its original sentence by imposing a new sentence of three years imprisonment.