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Appellate Procedure: Finality of Order – Postconviction Order Granting Plea-Withdrawal: Non-Final Order

State v. Bobby R. Williams, 2005 WI App 221
For Williams: Richard D. Martin, SPD, Milwaukee Appellate

Issue: Whether a postconviction motion granting plea-withdrawal is final, so as to trigger the 45-day deadline in § 974.05(1)(a) for State’s appeal.

¶15 Wisconsin Stat. § 808.03 sets forth appeals as of right and appeals by permission. Subsection (1) explains that an order is final when it “disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding, and that is” entered or recorded. Based on this definition, we conclude that the April 6th order was not a final order. An order granting a plea withdrawal is not final because it plainly anticipates further proceedings in the criminal case—either a trial or a guilty or no-contest plea. The April 6th order did not dispose of the entire matter in litigation. The order itself noticed a status conference for May 28th. Clearly, such order cannot be construed as a final order.¶16 We are further not persuaded by Williams’s argument that the order should be considered final because it ended the plea hearing proceedings. As the State pointed out, the granting of a plea withdrawal contemplates either a trial on the matter or renewed plea proceedings. Based on the language of Wis. Stat. § 808.03(1), we conclude that the trial court’s April 6th order was not final. Thus, the trial court retains jurisdiction unless the State files a petition seeking to appeal from a nonfinal order, and this court grants such petition.

Background: Williams filed an 809.30 postconviction motion for plea-withdrawal which the trial court granted, without notice to the State. The grant of relief was therefore indefensible, given that settled procedure requires an evidentiary hearing before plea-withdrawal can be granted. (Compare, State v. Michael A. Grindemann, 2002 WI App 106 (trial court erred in granting motion to modify sentence without either seeking state’s response or holding hearing).) Forty-nine days after the order granting relief was entered, the State filed a motion for reconsideration. If the order were deemed final, then this motion would be untimely, because then State then would have been obliged to file a notice of appeal with the 45-day deadline set by §§ 808.04(4) and 974.05(1)(a). But, if—as in the event—the order were deemed non-final, then the trial court has on-going (i.e., until entry of a final order) authority to reconsider, ¶11. As the passage quoted above indicates, the court of appeals deems the order granting plea-withdrawal to be non-final, therefore the trial court could entertain a motion to reconsider outside the (inapplicable) 45-day deadline.

What are the implications? Most prominently, the reasoning necessarily applies to a motion granting new trial (a point too obvious to bear elaboration). On the one hand, this result would appear to bring criminal postconviction practice in line with civil postjudgment procedure, Earl v. Marcus, 92 Wis. 2d 13, 16, 284 N.W.2d 690 (Ct. App. 1979) (order granting new trial non-final, because it continues rather than ends litigation). And yet, it’s not quite that simple. Some time back, the court of appeals determined that a postconviction order granting new trial was final, State v. Wright, 143 Wis. 2d 118, 122-23, 420 N.W.2d 395 (Ct. App. 1988), though that was based on State’s concession and soon thereafter the court noted that whether an order granting new trial was indeed “final in substance for purposes of appellate review” remained an open question, State v. Tolliver, 149 Wis. 2d 166, 168-69, 440 N.W.2d 571 (Ct. App. 1989) (not resolving question). That wouldn’t be so bad—a recurrent issue nonetheless left unresolved through the years but now (ahem) finally answered—except that very recently the court treated a motion granting new trial as final and appealable, in State v. Keith E. Williams, 2005 WI App 122 (State filed notice of appeal to order; court of appeals granted extension of time for defendant to file notice of cross-appeal). This suggests that, notwithstanding the question raised by Tolliver, practice was and continues to be treatment of order granting new trial as final. Ought that practice be considered doubtful now? Hard to say. Section 974.05 authorizes State’s appeal from final orders, and orders “granting postconviction relief” (as well as other enumerated matters such as suppression orders). The most sensible construction would be to place these authorized matters on the same footing as final orders. Tolliver notwithstanding, it’s very difficult to see how the grant of relief would not support a State’s notice of appeal (as opposed to petition for leave to appeal non-final order). And, indeed, the court of appeals might well say just that if confronted with an attempt to dismiss a State’s notice of appeal on such an order. But that would mean that these orders are treated as non-final for one purpose (trial-level motion for reconsideration) and final for another (notice of appeal). Is that too incoherent an approach? (Or, even less charitably, too result-oriented?) Finally, this outcome doesn’t change the idea that relief that does terminate the prosecution is final, e.g., State v. Romero D. Wilson, 2000 WI App 114 (dismissal of complaint upon refusal to bind over for trial held final, appealable order).

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