State v. Emmanuel Rovon Hamilton
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COURT OF APPEALS DECISION DATED AND FILED December 20, 2011 A. John Voelker Acting Clerk of Court of Appeals Appeal No. NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62. 2011AP544-CR STATE OF WISCONSIN Cir. Ct. No. 2004CF4134 IN COURT OF APPEALS DISTRICT I STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. EMMANUEL ROVON HAMILTON, DEFENDANT-APPELLANT. APPEAL from an order of the circuit court for Milwaukee County: DAVID A. HANSHER, Judge. Affirmed. Before Fine, Kessler and Brennan, JJ. ¶1 PER CURIAM. Emmanuel Rovon Hamilton, pro se, appeals from an order denying his second motion to vacate the DNA surcharge imposed when No. 2011AP544-CR he was sentenced in 2005.1 He contends the circuit court misused its discretion when it imposed the surcharge. We affirm. ¶2 Citing State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393, Hamilton argues that the circuit court failed to adequately explain why the surcharge was imposed. In Cherry, we held that a circuit court is required to demonstrate on the record a proper exercise of discretion when imposing a DNA surcharge pursuant to WIS. STAT. § 973.046(1g) (2009-10).2 See Cherry, 312 Wis. 2d 203, ¶¶9-10. ¶3 We recently held that a motion to vacate a DNA surcharge based on Cherry may not be brought after the time limits for filing either a direct appeal under WIS. STAT. RULE 809.30 or a motion for sentence modification under WIS. STAT. § 973.19 have elapsed. See State v. Nickel, 2010 WI App 161, 330 Wis. 2d 750, 794 N.W.2d 765. We explained that [w]hen a defendant moves to vacate a DNA surcharge, the defendant seeks sentence modification. Id., ¶5. We further explained that a motion for sentence modification must be brought within the time limits for direct appeal under RULE 809.30 or within ninety days of sentencing under § 973.19. Nickel, 330 Wis. 2d 750, ¶5. Hamilton did not move to modify his 2005 sentence within the deadlines. Therefore, his motion is untimely. 1 Hamilton s first pro se motion to vacate the DNA surcharge was filed in October 2009. The circuit court denied the motion, and he did not appeal. 2 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted. 2 No. 2011AP544-CR By the Court. Order affirmed. This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5. 3
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