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Appellate Procedure: Finality of Order

State v. Shawn D. Schulpius, 2006 WI 1, affirming, 2004 WI App 39
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: An order granting the State’s motion to reconsider an SVP’s supervised release was final and appealable:

¶26      We disagree with Schulpius’s characterization of the November 2000 order. Even though the circuit court did not initially characterize it as a final order, it was clear that the November 2000 order was intended to resolve all litigation then pending between the parties, and the circuit court so indicated in a letter to the parties on December 1, 2000, stating that it would not enter any further order. [5] As we explained in Harder v. Pfitzinger:

We conclude that when an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intended it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court.

Harder v. Pfitzinger, 2004 WI 102, ¶2, 274 Wis. 2d 324, 682 N.W.2d 398. Therefore, when Schulpius failed to appeal timely from the November 2000 order, he waived his right to challenge the validity of that order. …

This holding is too fact-specific to merit detailed discussion. However, some mention should be made of the trial judge’s letter as evincing intent to make the order final—it’s well-settled that finality “must be established by looking at the document itself,” Fredrick v. City of Janesville, 92 Wis. 2d 685, 688, 285 N.W.2d 655 (1979). Does this now mean that finality is tested by written (and oral) ancillary or accompanying remarks? The court of appeals’ analysis was as follows, ¶33, n. 8:

… The order on its face unambiguously contemplated entry of a reifying order when, in the last sentence, the trial court wrote: “As required by SCR 70.15 [sic-SCR 70.15 establishes “the judicial conference of Wisconsin”], a form order for such commitment will be separately entered.” Thus, the November 29 document was not on its face a “final order,” even though Judge Franke later decided that entry of a separate order was not necessary. Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490, 493-494, 326 N.W.2d 240, 241-242 (1982)….

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