(dissenting) .
¶ 31. Trujillo is asking the circuit court to consider whether his sentence pronounced under TIS-I, which exceeds the TIS-II maximum penalty, might, in the discretion of the circuit court, be modified in light of the reduced maximum penalties enacted under TIS-II. The circuit court refused to even consider the request. The majority opinion affirms the circuit court. I disagree. I would hold that a penalty reduction in TIS-II below the *733sentence imposed under TIS-I is a new factor that permits, but does not require, the circuit court to modify the sentence.
¶ 32. The Wisconsin legislature substantially changed sentencing in Wisconsin with the enactment of the Truth in Sentencing statutes. Under indeterminate sentencing, which was in existence in this state for many years, a circuit court pronounced sentence and the parole board generally determined how much of the sentence was served in prison.1 With the advent of Truth in Sentencing, a circuit court still pronounces a sentence, but parole is no longer available for those serving a prison sentence.
¶ 33. The effective date of the first Truth in Sentencing statute (TIS-I) was delayed to allow legislative change. Truth in Sentencing remained a legislative work in progress. Unfortunately, the legislature delayed enacting TIS-II. TIS-I went into effect December 31, 1999, even though everyone acknowledges that it was an unfinished work.2
*734¶ 34. TIS-II, effective February 1, 2003, contained, among other provisions, a significant reduction of the maximum penalties for many crimes.
¶ 35. Legislative penalties strongly influence a circuit court's sentencing decision; the statutory penalty is the legislature's gauge of the seriousness of the crime, and the legislature's gauge of the seriousness of the crime influences the sentence imposed by the court.
¶ 36. That persons sentenced under TIS-I could, and did, receive harsher penalties than those sentenced for the same crime under prior or subsequent laws is not in dispute. For example, Trujillo (as well as others who are governed by TIS-I) was sentenced to a greater prison term than those who committed the same crime but were sentenced under indeterminate sentencing or TIS-II. Under the basic principle of equal justice under law, it seems unfair to sentence persons to higher sentences pursuant to TIS-I during a three-year interim period of an unprecedented fluctuation in penalties, just because the legislature unfortunately (and unexpectedly) delayed enacting TIS-II and TIS-II's reduced penalties.
¶ 37. A circuit court has inherent power to modify a sentence.3 The legislature may create means and methods for modification of sentences,4 but, as the majority opinion states,5 legislative enactments do not affect a court's inherent power to modify a sentence. This court, not the legislature, sets the boundaries of the circuit court's inherent power to modify sentences.
*735¶ 38. A circuit court's inherent authority to modify a sentence is a discretionary power exercised within boundaries set by this court. This power is exercised to prevent the continuation of unjust sentences6 or sentences that are unduly harsh or unconscionable.7 A circuit court may correct formal or clerical errors or an illegal or void sentence.8 A circuit court has discretionary authority to modify a sentence on the basis of a "new factor."
¶ 39. A legislative change in the penalty was not a new factor under indeterminate sentencing. The court so decided in State v. Hegwood, 113 Wis. 2d 544, 335 N.W.2d 399 (1983), over my dissent. The Hegwood interpretation of a circuit court's inherent power to modify sentences might have made sense under indeterminate sentencing. In indeterminate sentencing, the executive branch could consider the legislative reduction of penalties and could release prisoners before they served their full time.
¶ 40. Hegwood does not, however, make sense for sentencing under TIS-I when the legislature intended to reduce the maximum penalties (but did not), and additionally when the executive branch lost its power to modify prison sentences through parole.
¶ 41. There is no need, however, to overrule Heg-wood. The Hegwood rule about a new factor can continue to apply to indeterminate sentences. Hegwood should not, however, be extended to TIS-I. I agree with Trujillo that Hegwood does not control the instant case because Hegwood presented a completely different fact situation.
*736¶ 42. Wisconsin is in a new sentencing era. This case demonstrates the court's need to reexamine a circuit court's inherent power to modify sentences. The court got it right in State v. Crochiere, 2004 WI 78, ¶ 26, 273 Wis. 2d 57, 681 N.W.2d 524: "[TJhere may be additional new factors unique to TIS-I that we have not previously identified."9
¶ 43. The reduction of the maximum penalties in TIS-II is, I conclude, a new factor unique to TIS-I, because the legislature did not intend TIS-I to go into effect until TIS-II was adopted with reduced penalties. The undisputed history of TIS-I and TIS-II demonstrates that the reduction of the penalties was highly relevant to the legislature and that the reduction was not known at the time of Trujillo's original sentencing.10
¶ 44. A new factor does not automatically entitle a prisoner to modification of a sentence. Whether the sentence warrants modification is left to the discretion of the circuit court. I conclude that a circuit court should, in its inherent power and discretion, determine whether Trujillo's TIS-I sentence should be modified in light of TIS-II reduction of penalty.11
¶ 45. For the reasons set forth, I dissent.
*737¶ 46. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.State v. Gallion, 2004 WI 42, ¶ 28, 270 Wis. 2d 535, 678 N.W.2d 197.
Majority op., ¶¶ 4-6; Justice Butler's dissent, ¶ 53. For discussions of TIS-I, TIS-II, and the transition, see, e.g., State of Wisconsin Criminal Penalties Study Committee Final Report (Aug. 31, 1999) (available at http://www.doa.state.wi.us/secy/ index.asp); Thomas J. Hammer, The Long and Arduous Journey to Truth-in-Sentencing in Wisconsin, 15 Fed. Sent. R. 15 (2002); Michael B. Brennan et al., Fully Implementing Truth-in-Sentencing, 75 Wis. Lawyer 10 (Nov. 2000); Michael B. Brennan & Donald V. Latorraca, Truth-in-Sentencing Comes to Wisconsin, 73 Wis. Lawyer 16 (May 2000); Legislative Reference Bureau Analysis of 1997 Assembly Bill 351; Wisconsin Legislative Council Staff, Information Memorandum 98-11 (June 24, 1998).
Hayes v. State, 46 Wis. 2d 93, 101, 175 N.W.2d 625 (1970), overruled in part by State v. Taylor, 60 Wis. 2d 506, 210 N.W.2d 873 (1973).
See, e.g., Wis. Stat. §§ 973.19, .195.
Majority op., ¶ 23 n.13.
State v. Franklin, 148 Wis. 2d 1, 9, 434 N.W.2d 609 (1989).
Cresci v. State, 89 Wis. 2d 495, 504, 278 N.W.2d 850 (1979).
Hayes v. State, 46 Wis. 2d 93, 101, 175 N.W.2d 625 (1970).
"In conclusion, we reaffirm that circuit courts have inherent authority to modify sentences on the basis of a new factor. Additionally, we continue to employ existing 'new factor' jurisprudence, while noting there may be additional factors unique to TIS-I that we have not previously identified." State v. Crochiere, 2004 WI 78, ¶ 26, 273 Wis. 2d 57, 681 N.W.2d 524.
Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975).
State v. Torres, 2003 WI App 199, 267 Wis. 2d 213, 670 N.W.2d 400, and State v. Longmire, 2004 WI App 90, 72 Wis. 2d 759, 681 N.W.2d 534, holding otherwise, should be overruled.