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Enhanced Penalties — Waiver of Objection to Sufficiency of Repeater Proof

State v. James O. Edwards, 2002 WI App 66, PFR filed 2/18/02
For Edwards: Glenn C. Cushing, SPD, Madison Appellate

Issue: Whether failure to object to exhibits (uncertified copy of judgment of conviction; DOC fax indicating prior periods of confinement) waived an argument that the state failed to prove Edwards’ repeater status.

Holding: Failure to object to documentation that facially establishes repeater status waives the issue of sufficiency of proof; State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998), distinguished:

¶10. Wisconsin Stat. § 973.13 does not bar application of the waiver doctrine. Admittedly, the statute uses the broad phrase “In any case,” but this is only in any case “in excess of that authorized by law.” Both statutory and case law recognize that parties waive their right to object to the admissibility of evidence on appeal when they fail to do so before the circuit court. Therefore, a sentence imposed based on evidence that the defendant has not objected to and, on its face, satisfies the requirements of Wis. Stat. § 973.12 is not imposed in excess of that authorized by law.¶11. We decline to conclude that Flowers holds otherwise. As noted above, Flowers addressed only the applicability of Escalona-Naranjo to Wis. Stat. § 973.13 motions and did not address waiver in the context of evidentiary rulings. Were we to interpret Flowers as precluding application of waiver in this context, we would in essence be concluding that a defendant could never waive any argument so long as he or she was proceeding under § 973.13. But it could not have been the intent of the legislature to create special rules of evidence applicable only to § 973.13 motions. Had the legislature intended such a dramatic departure from existing law, it would have so indicated. Nor is such an interpretation required by Flowers, which we emphasized was meant to be a ‘narrow exception’ to the waiver rule, not a mechanism by which defendants bringing § 973.13 motions could circumvent requirements applicable in all other contexts. See 221 Wis. 2d at 30.

However, the holding is expressly limited, “to instances where the State submits a document that, on its face, is sufficient to prove that the defendant was a repeater.” ¶13. The documents here – faxed uncertified judgment of conviction and faxed DOC document containing dates of incarceration – satisfy this test. Id. At the same time, the court adopts a narrow view of Flowers with respect to waiver of repeater arguments, ¶11 n. 4:

We recognize that the facts in State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998), are similar to the present case in that the merits of both cases involve determining whether a particular document is sufficient to prove that a defendant is a repeater.  In Flowers, the document was a revocation summary.  See 221 Wis. 2d at 32-33.  But Flowers did not consider whether the defendant in that case had waived his right to object to the admissibility of the revocation summary; it determined only the applicability of Escalona-Naranjo.  Further, the State in Flowers did not argue in its brief that Flowers had waived his objection to the admissibility of the revocation summary.  See generally Brief for the State of Wisconsin, State v. Flowers (No. 97-3682-CR).  We generally do not address issues not raised by the parties.  Waushara County v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16 (1992).

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