WisBar News: Legislative Repeal of Early Release Provisions Not Grounds for Sentence Modification:

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  • WisBar News
    June
    19
    2012

    Legislative Repeal of Early Release Provisions Not Grounds for Sentence Modification

    Joe Forward
    Legal Writer

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    Legislative Repeal of Early Release Provisions 
Not Grounds for Sentence Modification June 19, 2012 – A prison inmate potentially impacted by Wisconsin’s recent repeal of early release provisions won’t get a sentence modification, according to a state appeals court.

    In 2010, Michael Carroll was convicted for possessing a firearm as a felon. He was sentenced to five years in prison, but that sentence does not start until 2015, the year he will stop serving a consecutive sentence for violating the terms of his probation from a different case.

    In August 2011, the Wisconsin Legislature repealed sentencing laws that allowed nonviolent offenders to shave time off their prison sentences for good behavior.

    Carroll, subject to positive adjustment credit until the new law’s effective date in 2011, can’t get “good time” for his five-year sentence beginning in 2015. Carroll filed a motion for sentence modification, arguing the repeal effectively increased his term of confinement.

    The circuit court denied the motion, and the District I Wisconsin Court of Appeals upheld the ruling in State v. Carroll, 2011AP1922-CR (June 19, 2012).

    Sentence modification must be based on a new factor warranting modification, the appeals court explained, “a fact or set of facts both highly relevant to the imposition of sentence, and not known to the sentencing judge at the time of original sentencing.”

    Although the sentencing judge did not know about future changes in the law, the appeals court ruled that positive adjustment time was not a consideration at sentencing.

    “We conclude that the possibility of positive adjustment time was not a factor highly relevant to the sentence imposed,” wrote Judge Joan Kessler, noting that the sentencing judge made it clear that Carroll’s early release would not be in the interest of public safety.

    “Consequently, repeal of a program that was not considered at sentencing does not establish a new factor justifying sentence modification,” Judge Kessler wrote.

     

    Joe Forward is the Legal Writer for the State Bar of Wisconsin.
     

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