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Voluntary Dismissal, § 809.18 — Timing

State v. Joeval M. Jones, 2002 WI 53, ordering withdrawal of opinion in State v. Jones, 2002 WI App 29, 250 Wis. 2d 77, 640 N.W.2d 151
For Jones: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: Under State v. Lee, 197 Wis. 2d 959, 542 N.W.2d 143 (1996), “the court of appeals may not refuse to dismiss an appeal when an appellant notifies the court of voluntary dismissal of the appeal pursuant to Wis. Stat. § (Rule) 809.18 prior to the court of appeals’ issuance of a decision on the merits of the appeal.” ¶6. This principle applies when the notification is made the day before the decision is filed, even though the decision is mailed to the parties on that day. ¶7. The file stamp date on the decision is determinative:

¶8. Although this court in Lee did not specifically define when a court of appeals’ decision is “issued,” in St. John’s Home this court equated the date stamped on the court of appeals’ decision or order as the date it was “issued and filed.” Id. at 43. The fact that the clerk’s office as a matter of convenience and courtesy mails appellate decisions to the parties the day before they are “dated and filed” does not mean that those decisions are to be deemed to have been “issued” as of that mailing date. Consistent with past practice and common understanding, we conclude that appellate court decisions are “issued” on the date they are filed and that date is identified by the date stamped on the first page of the decision. The notice of voluntary dismissal of the appeal filed by Jones on December 10, 2001, operated to automatically dismiss his appeal with no further action needed from the court of appeals. We conclude the court of appeals’ decision dated December 11, 2001, must be withdrawn even though the panel of the appellate court deciding that appeal might not have been aware on that date of Jones’ notice of voluntary dismissal.

(Emphasis supplied.) Note: The court of appeals decision, no longer available on-line, held principally that a penalty enhancer applies only to actual confinement, not extended supervision; and that resentencing is the remedy for a violation of this rule.

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