Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Cox

Supreme Court of Wisconsin

June 15, 2018

State of Wisconsin, Plaintiff-Respondent,
v.
Michael L. Cox, Defendant-Appellant.

          ORAL ARGUMENT: March 16, 2018

          APPEAL from a judgment and an order of the Circuit Court for Milwaukee County, William W. Brash, III and T. Christopher Dee, Judges. Affirmed.

         ON CERTIFICATION FROM THE COURT OF APPEALS

          For the defendant-appellant, there were briefs filed and an oral argument by Hannah Schieber Jurss, assistant state public defender.

          For the plaintiff-respondent, there was a brief filed and an oral argument by Kevin M. LeRoy, deputy solicitor general, with whom on the brief were Brad D. Schimel, attorney general, and Misha Tseytlin, solicitor general.

          DANIEL KELLY, J.

         ¶1 Upon conviction of a felony, our statutes provide for imposition of a $250 deoxyribonucleic acid (DNA) analysis surcharge on the defendant. Before the legislature adopted 2013 Wis. Act 20 (Act 20), the relevant statute said the court "may" impose that surcharge. Now, however, the statute says the court "shall" impose the surcharge. The court of appeals certified Mr. Michael L. Cox's appeal to us so that we may determine whether the substitution of "shall" for "may" means that circuit courts no longer have the discretion to waive the surcharge. We conclude that Act 20 eliminated that discretion, and therefore affirm the circuit court.

         I. BACKGROUND

         ¶2 In the early hours of March 14, 2015, Mr. Cox drove approximately three miles on the wrong side of a Milwaukee-area highway, which also put him on the wrong side of the law. Mr. Cox evaded one squad car, but others eventually intercepted him and brought him to a halt. With bloodshot and glassy eyes, and smelling strongly of alcohol, Mr. Cox unsteadily emerged from his car and tried to hand one of the officers a large amount of cash. He was, of course, arrested. The ensuing search netted a plastic bag with a green leafy substance that tested positive for the presence of THC (tetrahydrocannabinols).[1]

         ¶3 Mr. Cox pled guilty to one count of second-degree recklessly endangering safety contrary to Wis.Stat. § 941.30(2) (2015-16), [2] a Class G felony. The State also charged Mr. Cox with one count of possession of THC-second and subsequent offense contrary to Wis.Stat. § 961.41 (3g) (e), which was later dismissed and read in at sentencing.[3]

         ¶4 At the sentencing hearing, the Milwaukee County Circuit Court[4] waived imposition of the $250 DNA surcharge set forth in Wis.Stat. § 973.046 (lr) (a) (the "DNA Surcharge statute") . It said: "All right. I'll order him to submit one [a DNA sample] if he hasn't previously done so. He doesn't have to repeat that process. And assuming for sake of argument that's [sic] he's already done that, I'm going to waive the imposition of a DNA surcharge with regards to this matter."[5]

         ¶5 Notwithstanding the waiver, the judgment (as it was ultimately entered) required Mr. Cox to pay the DNA surcharge. So Mr. Cox filed a postconviction motion requesting vacation of the surcharge because it conflicted with what the circuit court said when imposing sentence. The circuit court[6] denied Mr. Cox's motion, explaining that Wis.Stat. § 973.046 requires imposition of the DNA surcharge and that "the court had no authority under the statute to waive or vacate the surcharge on the basis that the defendant previously provided a DNA sample in another case."

         ¶6 The court of appeals certified Mr. Cox's appeal so that we may determine whether circuit courts have discretion under Wis.Stat. § 973.046 (1r) (a) to waive imposition of DNA surcharges for crimes committed after January 1, 2014.[7]

         II. STANDARD OF REVIEW

         ¶7 Interpreting and applying Wis.Stat. § 973.046 presents a question of law, which we review de novo. CEP Props., LLC v. City of Oshkosh, 2018 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.