State v. Lacey
| Decision Date | 29 June 2004 |
| Docket Number | No. 03-2854-CR, No. 03-2855-CR |
| Citation | 2004 WI App 149,685 NW 2d 172,275 Wis.2d 878 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Linda Lacey, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before Cane, C.J., Hoover, P.J., and Peterson, J.
Linda Lacey, pro se, appeals judgments of conviction for first-degree intentional homicide and attempted first-degree intentional homicide and an order denying her postconviction relief. We discern that Lacey raises six arguments on appeal: (1) her double jeopardy rights were violated; (2) the trial court erred by sentencing her without making a finding of extended supervision eligibility; (3) the trial court erred by sentencing her without first determining a restitution amount; (4) her speedy trial right was violated; (5) evidence should have been suppressed because of defective search warrants; and (6) her trial counsel was ineffective.1
¶ 2 Although we reject Lacey's arguments, in conjunction with her first argument, Lacey is correct to observe the judgments of conviction erroneously show she was convicted of two counts of first-degree intentional homicide. Therefore, while we affirm the judgments and order, we remand the case to the trial court with direction to the clerk's office to correct the second judgment of conviction to reflect Lacey was convicted of attempted first-degree intentional homicide. See State v. Prihoda, 2000 WI 123, ¶ 17, 239 Wis. 2d 244, 618 N.W.2d 857.
¶ 3 On September 24, 2001, Lacey killed Thomas Lacey, her ex-husband, by shooting him fifteen times and injured Katina, Thomas's wife, by shooting her once in the shoulder. Lacey was charged with first-degree intentional homicide for shooting Thomas and attempted first-degree intentional homicide for shooting Katina. A jury later convicted her on both counts.
¶ 4 The trial court sentenced Lacey to life imprisonment, without the possibility of extended supervision, for the first-degree intentional homicide count and fifty years' imprisonment on the attempted first-degree homicide count, comprised of thirty years' initial confinement followed by twenty years' extended supervision. Lacey filed a motion for postconviction relief, which the trial court denied. Lacey appeals.
¶ 5 Lacey argues her double jeopardy rights were violated, as she claims she received two punishments for one crime. Lacey notes that a jury convicted her of first-degree intentional homicide for Thomas's death and attempted first-degree intentional homicide for shooting Katina. However, the judgments of conviction indicate Lacey was convicted on two counts of first-degree intentional homicide and sentenced to life imprisonment on the first count and thirty years' imprisonment on the second count. Thus, she argues, she received two punishments for one crime. See State v. Upchurch, 101 Wis. 2d 329, 334-35, 305 N.W.2d 57 (1981) (). We disagree.
¶ 6 The second judgment of conviction, which indicates Lacey was convicted of first-degree intentional homicide as opposed to attempted first-degree intentional homicide, is nothing more than a clerical error. See Prihoda, 239 Wis. 2d 244, ¶ 15. The jury verdict clearly sets forth Lacey was convicted of one count each of first-degree intentional homicide and attempted first-degree intentional homicide. Furthermore, the sentencing transcript reveals the trial court sentenced Lacey to life imprisonment on the first-degree intentional homicide conviction and to thirty years' imprisonment on the attempted first-degree intentional homicide conviction. While Lacey has no basis for arguing her double jeopardy rights were violated, we remand the case to the trial court with directions to the clerk's office to correct the second judgment of conviction to reflect Lacey was convicted of attempted first-degree intentional homicide. See id., ¶ 17.
¶ 7 Lacey next argues the trial court erred by sentencing her to life imprisonment without finding her eligible for extended supervision. However, when the trial court sentences someone to life imprisonment, WIS. STAT. § 973.014(1g)(a)1-3 gives the trial court discretion in determining whether extended supervision is appropriate.2 It can find:
Id. Here, pursuant to subdivision 3, the court found Lacey was ineligible for extended supervision, largely because the court determined Lacey represented a danger to the public and that community protection required her to be confined for life. Thus, the court acted within its authority and properly exercised its discretion.3
¶ 8 Lacey's third argument is that her sentence is illegal because the amount of restitution was not set before the trial court pronounced her sentence. We disagree.
¶ 9 Lacey's sentencing hearing was held on July 16, 2002. In addition to imposing sentence, the court set a preliminary restitution amount, but indicated the precise amount should be determined at a later hearing to be held within the time limits of WIS. STAT. § 973.20(13)(c)(2). Subdivision (c)(2) allows the trial court to "[a]djourn the sentencing proceeding for up to 60 days pending resolution of the amount of restitution by the court, referee or arbitrator."4 The restitution hearing was timely held fifty-nine days later, on September 13, 2002. Further, from the scheme set forth in subsection (13), it is apparent that the court can impose sentence before the actual amount of restitution is determined. See WIS. STAT. § 973.20(13)(c)1 (); see also WIS. STAT. § 973.20(13)(c)3 () and WIS. STAT. § 973.20(13)(c)4 (). Therefore, the failure to make a precise finding of restitution before pronouncing sentence is not error.
¶ 10 Lacey's fourth argument is that she was denied her right to a speedy trial. A defendant has both a statutory and constitutional right to a speedy trial. See WIS. STAT. § 971.10(2)(a) (); U.S. CONST. Amend. VI; WIS. CONST. art. I, § 7. The remedy for a statutory speedy trial violation is release from confinement pending trial, see WIS. STAT. § 971.10(4), while the remedy for a constitutional speedy trial violation is dismissal of the charges, see State v. Braunsdorf, 98 Wis. 2d 569, 586, 297 N.W.2d 808 (1980). Even though Lacey's December 13, 2002, request for a speedy trial included both statutory and constitutional grounds, on appeal she seeks dismissal of the charges on her speedy trial claim. Therefore, we construe her argument to be grounded in a constitutional violation only.
¶ 11 "The determination of whether there has been a denial of a speedy trial involves a four-factor balancing test, in which the conduct of both the prosecution and the defendant are weighed." State v. Williams, 2004 WI App 56, ¶ 32, 677 N.W.2d 691. The four factors are (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his or her right, and (4) the prejudice to the defendant. However, the length of the delay is "a triggering mechanism," and "until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id., ¶ 33 (citations omitted).
¶ 12 Lacey was arrested on September 24, 2001. Her trial commenced on May 20, 2002. Thus, her trial began in just under eight months after she was taken into custody. This time period falls short of what case law recognizes as presumptively prejudicial. See State v. Leighton, 2000 WI App 156, ¶ 7, 237 Wis. 2d 709, 616 N.W.2d 126 (). Consequently, we need not consider the other factors, and Lacey's constitutional right to a speedy trial was not violated.
¶ 13 Lacey's fifth argument is that evidence presented at trial should have been suppressed. She argues that two search warrants incorrectly listed her address as "S961 Sand Road," as opposed to the correct address of "S691 Sand Road." She also contends the search warrants were improper because a court commissioner, not a judge, signed them, and that the search warrant for her vehicle lacked probable cause. We reject these arguments.
¶ 14 As to the incorrect address, this typographical error is insignificant because the warrant was not for "S691 Sand Road" and did not purport to describe the place to be searched. The search warrant was to search the clothes Lacey was wearing at the time she was arrested to identify the source of any blood, hair or fibers found on the clothes. Thus, the technical irregularity misidentifying her address in the exhibit attached to the search warrant is immaterial. See WIS. STAT. § 968.22 ().
¶ 15 As to Lacey's contention that the search warrants are invalid for want of a judge's signature, WIS. STAT. § 967.07 provides...
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