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Court of appeals bungles denial of motion for reconsideration of decision on petition for writ coram nobis

Sawyer County v. Maurice J. Corbin, 2013AP650; 1/22/14; District 3 (one-judge opinion ineligible for publication); case activity

 This is an odd little case with some interesting potential. In 2004, Corbine was arrested for OWI and refused to submit to a chemical blood test under implied consent law. Supposedly Corbine received a “notice of intent to revoke operating privilege” but failed to request a refusal hearing, so the court entered default judgment revoking his license.

 Skip ahead 8 years. Corbine filed a petition for a writ coram nobis arguing that the refusal judgment was invalid because, among other things, he had attended a hearing where the circuit court had dismissed the refusal citation. The court held a hearing where the State presented evidence, and Corbine lost.  Corbine moved for reconsideration, and upon losing, he appealed both the denial of his petition for writ coram nobis and his motion for reconsideration.  Last July, the court of appeals dismissed the appeal re the denial of the petition on the theory that Corbine failed to file a timely notice of appeal, and section 805.17(3), which extends the deadline for civil appeals from judgments entered after court trials, did not apply to his circumstances.

That left only Corbine’s appeal from the denial of his motion for reconsideration—the decision at issue here. The court now dismisses this appeal because Corbine supposedly failed to present issues other than those disposed of by the original order (denying coram nobis) as required by Marsh v.City of Milwaukee, 104 Wis. 2d 44, 45, 310 N.W.2d 615 (1981).

Here’s the first bit of weirdness. The purpose of a writ corman nobis is to give the trial court a chance to correct its own error of fact that is not evident from the record and that it wouldn’t have committed if the problem had been brought to its attention. That means a hearing on a petition for writ of coram nobis necessarily involves a dispute over facts and likely the presentation of evidence. Schessler v. Schessler, 179 Wis. 2d 781, 508 N.W.2d 65 (Ct. App. 1998) holds that section 805.17(3) applies not just to court trials but to evidentiary hearings too. Wouldn’t Corbine’s coram nobis hearing qualify? We don’t know because the July 2013 decision isn’t on line and CCAP’s entries are too cryptic and often unreliable.

Here’s the second bit of weirdness. The court of appeals claims this appeal presents the same issues as those resolved by the original order denying the petition for writ of coram nobis. Slip op. para 7. But four paragraphs later, it admits that in this appeal Corbine presented an argument that the trial court never ruled on. So, by definition this appeal presented an issue that satisfied the Marsh test, right?

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