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  • WisBar News
    September 07, 2017

    Appeals Court Certifies DNA Surcharge Waiver Issue to Supreme Court

    Joe Forward

    DNA Surcharge

    Sept. 7, 2017 – The Wisconsin Court of Appeals has certified an appeal for bypass to the Wisconsin Supreme Court to determine if circuit courts can waive a DNA surcharge that state law imposes on defendants convicted of misdemeanors or felonies.

    In 2013, the Wisconsin Legislature enacted a law that said a court “shall” impose a DNA surcharge on defendants convicted of or placed on probation for crimes. The surcharge, $200 for misdemeanors and $250 felonies, helps pay for DNA sample processing.

    Previously, the circuit court had discretion to impose a DNA surcharge, but the new law appeared to create a mandatory surcharge that circuit court judges could not waive.

    Michael Cox is now arguing that circuit court judges retained the discretion to waive DNA surcharges, despite the new law, because the same law enacting the new DNA surcharge provision also imposed a crime victim and witness assistance surcharge.

    While the crime victim and witness assistance surcharge statute contains express language that judges cannot waive the surcharge, the DNA surcharge provision does not.

    In its certification to the state supreme court, the appeals court recognized that Cox, who pled guilty to second degree recklessly endangering safety after driving drunk down the wrong side of the highway, has a valid argument.

    “When another statute contains a similar provision, the omission of a portion of the similar statute concerning a related subject is significant in showing that a different intention existed,” the certification states.

    “Cox contends that Act 20 changed the DNA surcharge from providing a default that the surcharge will not be imposed unless the sentencing court decides otherwise, to a default that it will be imposed unless the court exercises its discretion to waive the surcharge.”

    The principles of statutory construction “seemingly favor Cox’s construction of the statute,” the appeals court noted, but numerous decisions since the new law took effect have described the DNA surcharge as “mandatory.” And the appeals court cannot overturn published precedent. Thus, it asked the supreme court decide the issue.

    DNA Surcharge Appeals Continue

    Ever since the new law took effect in 2014, defendants have attacked the DNA surcharge provision, mostly on ex post facto grounds.

    In 2015, the appeals court ruled that two defendants who committed crimes before the new DNA surcharge law took effect (but convicted after) were not subject to the surcharge because the surcharge was discretionary when the crimes were committed.

    The appeals court also ruled that it violated the prohibition on ex post facto laws to impose a separate surcharge for each felony count, required under the new law, because the defendant was not subject to the new law and it would be punitive.

    However, in 2017, a similar case reached the Wisconsin Supreme Court, which ruled that it did not violate the bar on ex post facto laws for a judge to impose the $250 DNA surcharge, thinking it was mandatory, because the single surcharge was not punitive.

    The appeals court, in the Cox certification, noted that two more DNA surcharge cases are currently pending before the Wisconsin Supreme Court. 

    In State v. Odom, the appeals court certified the appeal to determine whether courts must advise defendants about the DNA surcharge before pleading guilty or no contest.

    A petition is also pending in State v. Williams, in which the appeals court ruled that imposing a DNA surcharge again, after the defendant submitted a DNA sample and paid a surcharge for a prior felony conviction, constituted an ex post facto violation.

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