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State’s failure to file a brief leads to (partial) defense win

State v. Aman D. Singh, 2017AP1609, 7/26/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

We last saw Singh attempting, and failing, to get his long-ago second-offense OWI dismissed by a writ of coram nobis. After that, he went back to court arguing that the count should be dismissed because of  Wis. Stat. § 345.52 (which says that a judgment in a traffic ordinance action bars state proceedings for the same violation) and Wis. Stat. § 973.17 (which says excessive sentences are void).

The circuit court denied Singh’s motion, and the court of appeals doesn’t address the merits of his argument. Instead, it reverses because, despite being prodded by the court to do so, the state never filed a respondent’s brief:

The State was given repeated notice of the requirement to file a responsive brief and was provided notice that Singh had moved for summary reversal based on the State’s failure to file a responsive brief. Not only was no brief forthcoming, but no request for extension of time was received from the State nor a letter explaining its inaction. This court can only conclude that the State has abandoned its position in this appeal.

(¶9).

However, the reversal and remand may not do Singh much good:

Thus, the order of the circuit court denying Singh’s motion to vacate the judgment of conviction is summarily reversed. In doing so, however, I note that the statute invoked by Singh on appeal, WIS. STAT. § 973.13, provides only one remedy: voiding any penalty in excess of the statutory maximum. The statute does not provide for vacation of the conviction or relief from the valid portion of the sentence. Since the penalties were fully served many years ago, and Singh has not moved for withdrawal of his no contest plea, this limited remedy may render the matter moot.

(¶11).

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