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Appellate Procedure: Finality of Order — Subsequent Order Superceding Prior Order

State v. Patrick E. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, reversing 224 Wis. 2d 814, 592 N.W.2d 310 (Ct. App. 1999)
For Richter: Susan Alesia, SPD, Madison Appellate

Issue: Whether the second of two competing orders granting a suppression motion superceded the first, so as to make the state’s notice of appeal timely.
Holding: Under the circumstances, the trial court clearly intended the second order to supercede the first and the notice of appeal was therefore timely.

This is a somewhat technical appellate problem but recurrent and important nonetheless for trial practitioners. The time limit for appeal doesn’t begin running until a written order is entered. The deadline for a state’s appeal (on a suppression order such as this one) is 45 days. § 974.05. This time limit isn’t extendible, so an untimely notice of appeal can’t be rehabilitated. In this case, the trial court entered two separate orders (the first had been drafted by the defense, the subsequent one by the prosecution). The notice of appeal would be untimely as measured against the first order, timely as against the second. Generally, the entry of a “successive, nonconflicting” order doesn’t override a prior order; in other words, appeal can’t be taken from an order merely denying a motion for reconsideration. ¶¶22-23. In this case, however, for very fact-specific reasons the second order does supercede the first one. The trial court entered the first order before expiration of a five-day waiting period for objections provided by local circuit court rule. ¶20. The prosecution later indicated that it did have objections, and then submitted its own, proposed order without objection from the defense. Emphasizing the absence of any evidence of attempted manipulation of the appellate time clock, the court holds: “the circuit court’s second order, while not specifically vacating the earlier order, corrected the apparent mistaken entry of the first, and the one supplanted the other for all purposes, including the time for appeal.” ¶24.

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