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Dismissed charge could not be used to order sex offender registration

In the case of State v. Jackson, a circuit court's ruling requiring the defendant to register as a sex offender was reversed by the Wisconsin Court of Appeals. The underlying conduct that formed the basis of the defendant's convictions was not sexually motivated, and a sexual assault charge that occurred on a later date and was dismissed by the state could not be used as the basis for an order requiring sex offender registration, the appeals court said.

Background and procedural history

The defendant was charged with seven crimes. Five of the crimes allegedly occurred on November 19, 2005, and the other two allegedly occurred on November 22, 2005. The defendant pled no contest to four of the five charges allegedly occurring on November 19, which included false imprisonment, intimidation of a witness, battery-domestic abuse, and taking and operating a motor vehicle without the owner's consent. The fifth charge, for robbery, was dismissed but "read-in" for sentencing purposes. The two charges for crimes allegedly occurring on November 22, which included charges for second-degree sexual assault and battery-domestic abuse, were also dismissed but read-in for sentencing purposes.

Under Wisconsin law, the terms of a plea agreement may require that certain charges that are dismissed by the state will be "read in" at sentencing. A judge may consider the read-in charges at the sentencing hearing, even though the defendant did not enter a guilty plea or a no contest plea to those charges.

The circuit court accepted the defendant's pleas. A pre-sentence investigation report did not recommend requiring the defendant to register as a sex offender, nor did the state seek such an order at the sentencing hearing. The defendant was sentenced to a term of four years of imprisonment, plus an additional four years of extended supervision, but the sentencing order did not require him to register as a sex offender.

After the defendant completed the prison part of his sentence, the circuit court conducted a sentence review hearing and concluded that the crimes for which the defendant had been convicted were sexually motivated and issued an order requiring the defendant to register as a sex offender.

The defendant appealed the ruling to the Court of Appeals.

The decision by the Court of Appeals

The Court of Appeals reversed, stating that the circumstances surrounding the incident that led to his convictions did not indicate that the conduct was, in part, sexually motivated, within the meaning of the sex offender registration statute.

The criminal complaint did not contain any allegations suggesting a sexual motivation for the defendant's conduct. There were no allegations that the defendant touched or attempted to touch the victim in a sexual manner. The complaint did not allege that the defendant made any statements during the commission of these crimes which would suggest that the crimes were sexually motivated.

The circuit court improperly considered the second-degree sexual assault charge, a charge that was dismissed by the state but read in at sentencing, as a factor in its decision. A read-in offense may not serve as a legal ground for imposing sex offender registration requirements. A defendant cannot be sentenced for a read-in offense, since no conviction was ever obtained on the read-in offense. Charges that are dismissed and read in may be considered at sentencing, but only for purposes of sentencing on the crimes for which the defendant was convicted.

Contact an attorney

Those facing criminal charges should seek the assistance of an attorney experienced in defending these matters to ensure that their rights are protected.

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