by admin
on February 25, 2009
Werner v. Hendry, 2009 WI App 103, PFR filed 7/17/09
Issue/Holding:
¶11 As a final matter, we observe that the appellant’s appendix fails to include the trial court’s reasoning. It is essential that the appendix include the record items truly relevant and essential to understanding the issues raised, particularly the trial court’s oral ruling. State v. Bons, 2007 WI App 124, ¶23, 301 Wis. 2d 227, 731 N.W.2d 367. Counsel for the appellant is sanctioned $150 for providing a false appendix certification and providing a deficient appendix. Id., ¶25. Counsel shall pay $150 to the clerk of this court within thirty days of the release of this opinion.
Just a friendly reminder to anyone filing an appellate brief: the court expects you to provide an adequate appendix, and it also takes the certification process very seriously. By the way, the court also dismissed Werner’s appeal on jurisdictional grounds, due to an untimely notice of appeal; the fine is insult added to injury.
{ }
by admin
on February 25, 2009
State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney
Issue/Holding: ¶1 n. 1:
Haywood’s notice of appeal mistakenly asserts that he also appeals “from … the postconviction motion dated December 2, 2008.” First, Haywood’s appeal is from the circuit court’s order denying his motion, not from the motion. Second, the circuit court’s order is dated December 1, 2008, although it was filed on December 2. We, obviously, ignore these silly errors, see Wis. Stat. Rule 805.18(1) (“The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.”) (made applicable to appellate procedures by Wis. Stat. Rule 809.84), but caution counsel to be more careful in the future.
Compare, State v. Patrick Jackson, 2007 WI App 145 (defect in NOA referring to order denying postconviction motion but not to judgment of conviction “is not fatal to our review of Jackson’s contention that the judgment was improperly entered against him”—non-fatal nor, for that matter, termed “silly” error; authored, incidentally, by same judge; take note that, perhaps, court’s patience for sloppy wording in NOA wearing thin).
{ }
by admin
on February 25, 2009
Waukesha County v. Genevieve M., 2009 WI App 173
For Genevieve M.: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: ¶ 2 n. 2:
The failure of the notice of appeal to correctly identify the final appealable document is not fatal to appellate jurisdiction. See Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267 (1992). The caption has been amended to reflect that the appeal is taken from both orders. Following entry of the order for protective placement, the appellant timely filed a notice of intent to pursue postdisposition relief under Wis. Stat. Rule 809.30(2)(a). That notice may be construed as a timely notice of appeal from the order appointing a guardian.
No quarrel with the idea that omissions, even nominally critical ones, don’t undermine a notice of appeal. Nor, really, with the idea that the notice of intent “may be construed as a timely notice of appeal.” It’s just that the latter principle is somewhat novel (and, to be sure, not always followed in the past by the court), and therefore worth keeping in mind.
{ }
by admin
on February 25, 2009
Waukesha County v. Genevieve M., 2009 WI App 173
For Genevieve M.: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: Although a ch. 54 guardianship appeal is decided by a 3-judge and ch. 55 protective placement by a 1-judge panel, when the 2 were commenced and decided under a single trial court case number, the appeal will be decided by a 3-judge panel:
¶5 The plain language of Wis. Stat. § 752.31(1) establishes that all appeals before the court of appeals shall be decided by a panel of three judges. Section 752.31(3) merely provides exceptions to the general rule for the types of cases listed in § 752.31(2). Exceptions are to be strictly construed and applied. See Lang v. Lang, 161 Wis. 2d 210, 224, 467 N.W.2d 772 (1991). Accordingly, all doubts about whether an appeal should be decided by a three-judge panel or one court of appeals judge should be resolved in favor of the default rule that a three-judge panel be utilized. See Wisconsin Fertilizer Ass’n, Inc. v. Karns, 52 Wis. 2d 309, 317-18, 190 N.W.2d 513 (1971) (with regard to exemptions to safety statutes all doubts should be resolved in favor of the general provision rather than the exception). Thus, where an appeal involves the type of case specified in § 752.31(2)(d), and also involves a case which § 752.31(1) requires to be heard by a three-judge panel, the appeal will be assigned for decision by a three-judge panel. This is consistent with this court’s practice of having the chief judge order a one-judge appeal to be decided by a three-judge panel when the appeal is consolidated with an appeal required by statute to be heard by a three-judge panel. See Wis. Stat. Rules 809.10(3), 809.41(3). This does not change that appeals which involve only a protective placement order or other order confined to a proceeding under Wis. Stat. ch. 55, such as a termination petition under Wis. Stat. § 55.17 or annual review under Wis. Stat. § 55.18, will be assigned for decision by one court of appeals judge.
{ }
by admin
on February 25, 2009
State v. Carl Davis Brown, Jr., 2009 WI App 169
For Brown: Paul G. Bonneson
For SPD: Colleen D. Ball, Milwaukee Appellate
Issue/Holding:
¶7 The statutes referenced in Wis. Stat. Rule 809.32(1)(a), relate to the appointment of counsel by the state public defender. Thus, pursuant to Rule 809.32(1)(a), an attorney appointed by the state public defender may file a no-merit report using the statutory scheme set out in Rule 809.32. Brown’s appellate counsel seeks to use the statutory procedure on Brown’s behalf even though the circuit court and not the state public defender appointed counsel for Brown. We agree that counsel may do so.…
¶10 Accordingly, we hold that Brown and other indigent criminal defendants with court-appointed appellate lawyers may pursue appellate review in the court of appeals using the procedures in Wis. Stat. Rule 809.32 when appellate counsel concludes that an appeal would lack arguable merit. To the extent that the procedural posture of any particular defendant’s case hampers compliance with the statutory deadlines or other requirements contained in the Rule, counsel may move this court for appropriate relief. [4] See Wis. Stat. Rules 809.14, 809.82.
{ }
by admin
on February 25, 2009
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: Because sufficiency of evidence to sustain the conviction is a matter of constitutional dimension, it may be raised via § 974.06 motion, ¶¶25-30.The court’s discussion also indicates, at least implicitly, that the State v. Obea S. Hayes, 2004 WI 80 holding (sufficiency claim not waived on direct appeal even though not raised in trial court) applies in the context of 974.06 review.
{ }
by admin
on February 25, 2009
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.
{ }
by admin
on February 25, 2009
State v. Michael Lee Washington, 2009 WI App 148
For Washington: Christopher Lee Wiesmueller
Issue/Holding: ¶1 n. 1:
The State asserts that Washington is precluded from making this argument on appeal because he did not object when the prosecutor made his recommendation before the circuit court. Generally, the failure to object is a “dispositive infirmity.” State v. Grindemann, 2002 WI App 106, ¶27, 255 Wis. 2d 632, 648 N.W.2d 507. We nevertheless choose to address the argument because it is likely to recur. See State ex rel. Krieger v. Borgen, 2004 WI App 163, ¶7, 276 Wis. 2d 96, 687 N.W.2d 79 (in the interest of judicial economy, we may address issues that are likely to recur).
{ }
