Once a person is convicted and sentenced for a dui ,can they be resentenced because of a court mistake?

Asked almost 4 years ago - Sheboygan, WI

3rd offense dui child in car in sheboygan county wisconsin.was sentenced to nine months jail and 2 years probation case was closed.just started serving time.now court is saying a mistake was made with the probation part of sentence(apparently they cannot give probation for these offenses),and so the they made a new court date now ,which i believe is another sentencing hearing,but not entirely sure.public defender says she cannot guarantee they would not give prison this time.this seems very odd to me.is this even legal?thanks

Attorney answers (2)

  1. Karyn T. Missimer

    Contributor Level 18

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    Answered . Please post the information I previously requested. Without that information, I cannot give you anymore advice than I already have.

    http://www.avvo.com/legal-answers/3rd-offense-o...

    Again, you are represented by counsel. You should be directing your questions to you attorney. Your attorney is in the best position to answer them.

    Good luck!

  2. Karyn T. Missimer

    Contributor Level 18

    1

    Lawyer agrees

    Answered . I believe the original sentence was legal. You are correct that the minor passenger enhancer makes this a felony conviction. Any conviction for which the possible jail time is over a year = a felony/prison conviction. Under 973.09, the maximum term of probation for a felony is the same as the maximum confinement in prison or 3 years, whichever is greater. The maximum confinement for your fiancee was 2 years. 3 years is greater. She had 3 years of probation available to her.

    Of course, this is an argument her attorney would have to make. And, I may be missing something as I do not have all the facts, like your fiancee's attorney.

    Again, if probation was not an option, a new sentencing hearing is the correct remedy.

    Good luck!

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