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Name Change, Judgment of Conviction – Based on Claim of Common Law Right to Change Name

State v. Jermaine Smith, 2009 WI App 104
Pro se

Issue/Holding:

¶1        Jermaine Smith appeals from an order denying his “motion to amend his Judgment of Conviction to reflect his common law spiritual name,” which he states is “Marcolo Von Capoeira.” Because Smith’s motion fails to provide any support for his assertion that he used the name Marcolo Von Capoeira for ten years (including four years prior to the time his crime was committed) and because he did not raise this issue during his criminal case, we affirm the order.…

¶11      Like Tiggs, Smith is asserting that his name was legally changed prior to the time he committed the crime for which he is imprisoned. Unlike Tiggs, Smith asserts that his name was changed not by virtue of a court order, but by application of common law. Smith is correct that Wisconsin law allows one to change one’s name via the common law. See State v. Hansford, 219 Wis. 2d 226, 246, 580 N.W.2d 171 (1998) (Wisconsin “recognize[s] the common law right to change one’s name through consistent and continuous use, as long as the change is not effected for a fraudulent purpose.”). However, we conclude that Smith’s motion—which was based on his assertion that he changed his name via the common law—failed to provide any evidence that he changed his name through consistent and continuous use. Moreover, he failed to raise this issue during the pendency of his criminal case, even though he was supposedly already using the name Marcolo Von Capoeira during that time. For these reasons, the motion was properly denied.

 

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