STATE v. SMITH, 2011 WI App 99

334 Wis.2d 806, 800 N.W.2d 957

No. 2009AP001972-CR.Court of Appeals of Wisconsin, District I.
Opinion Filed: May 17, 2011.

APPEAL from an order of the circuit court for Milwaukee County: KEVIN E. MARTENS, Judge. Affirmed.

Before Fine, Kessler and Brennan, JJ.

PER CURIAM.

¶ 1 Christopher D. Smith, pro se, appeals an order denying his motion to vacate a DNA surcharge imposed when he was sentenced in 2002. He contends the circuit court misused its discretion when it imposed the surcharge. We affirm.

¶ 2 Smith argues that the circuit court failed to adequately explain why the surcharge was imposed as required byState v. Cherry, 2008 WI App 80, ¶ 10, 312 Wis. 2d 203, 752 N.W.2d 393. 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).[1] SeeCherry, 2008 WI App 80, ¶¶ 9-11.

¶ 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 Statev. 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., 2010 WI App 161, ¶ 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. Id., 2010 WI App 161, ¶ 5. Smith did not move to modify his 2002 sentence within the deadlines. Therefore, his motion is untimely.

By the Court. — Order affirmed.

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.