District III
February 17, 2015
To:
Hon. William C. Stewart Jr.
Circuit Court Judge
Dunn County Judicial Center
615 Stokke Parkway, Suite 1500
Menomonie, WI 54751
Clara Minor
Clerk of Circuit Court
Dunn County Judicial Center
615 Stokke Parkway, Suite 1500
Menomonie, WI 54751
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Holly D. Wood Webster
Assistant District Attorney
615 Stokke Parkway, Suite 1700
Menomonie, WI 54751
Katie R. York
Asst. State Public Defender
P.O. Box 7862
Madison, WI 53707-7862
Stephen Ray Harmston 583539
Racine Youthful Offender Corr. Facility
P.O. Box 2500
Racine, WI 53404-2500
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Stephen Ray Harmston (L.C. # 2013CF303) |
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Before Hoover, P.J., Stark and Hruz, JJ.
Counsel for Stephen Harmston has filed a no-merit report concluding there is no arguable basis for Harmston to challenge his convictions and sentences for felony substantial battery/domestic abuse and misdemeanor violating a domestic abuse order, both as a repeater. Harmston filed a response raising issues regarding the sentencing proceedings. Upon our independent review of the record as mandated by Anders v. California, 386 U.S. 738 (1967), we cannot conclude that there is no basis for further postconviction proceedings related to the costs and surcharges imposed in the judgments of conviction.
On page thirty-seven of the sentencing transcript, the district attorney asked the court to impose costs on the felony of $268 plus $250 for the DNA surcharge, and $243 on the misdemeanor, plus a $100 domestic abuse surcharge added to both judgments. On page sixty-two, the court stated “I am going to -- conditions of extended supervision should include the DNA sample and paying for costs….” On page sixty-five the district attorney again itemized the costs and surcharges, this time requesting $268 on the felony plus $100 domestic abuse surcharge, and $243 on the misdemeanor, plus a $100 domestic abuse charge. The court responded “OK. I haven’t added up those totals, but I would order all those as a condition.”
The judgment of conviction for the felony includes court costs of $163, other of $113, the victim/witness surcharge of $92, and a $100 DNA surcharge. We cannot reconcile the amounts listed on the judgment with the amounts ordered by the court or with the mandatory DNA surcharge set out in Wis. Stat. § 973.046. The misdemeanor judgment includes court cost of $163, other of $113, and the victim/witness surcharge of $67. It includes no DNA surcharge.
Because we are uncertain of the sentencing court’s intention and cannot reconcile the amounts stated in the judgments with the court’s imposition of specific costs or with the mandatory DNA surcharges, we cannot conclude that there is no arguable basis for further postconviction proceedings. Therefore, we reject the no-merit report and extend the time for filing a postconviction motion to seek clarification of the court’s decision on costs and surcharge and, if appropriate, modification of the judgments.
IT IS ORDERED that this appeal is dismissed without prejudice,
IT IS FURTHER ORDERED that the time for filing a postconviction motion is extended to sixty days from the date of this order.
Diane M. Fremgen
Clerk of Court of Appeals