7th circuit decision, on habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal) Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part I (IAC – adequate provocation defense) is here; Part III (evidentiary hearing, GP advice), here. Habeas –… Read more
12. State’s waiver
State v. Jason W. Kucik, 2009AP933-CR, District 1, 11/16/10 court of appeals decision (3-judge, not recommended for publication); for Kucik: Thomas J. Nitschke; Resp. Br.; Reply; Kucik Supp. Br.; State’s Supp. Br. Appellate Procedure – Affirmance on Different Theory than Posited Below ¶31 We agree with the State that it is appropriate for us to consider the… Read more
State v. Christopher Melendrez, 2009AP2070, District 4, 9/2/10 court of appeals decision (3-judge, not recommended for publication); for Melendrez: David R. Karpe; BiC; Resp.; Reply SVP – Retroactivity of Qualifying Offense Legislation Third-degree sexual assault wasn’t an SVP-qualifying offense when Melendrez plea-bargained a reduction of 2nd-degree sexual assault to 3rd. But by the time he… Read more
State v. Kyle Lee Huggett, 2010 WI App 69; for Huggett: Craig A. Mastantuono; BiC; Resp; Reply The State forfeited a potential appellate argument by conceding it in the trial court, in response to Huggett’s postconviction motion, ¶14. Unmentioned by the court: the State is the appellant. Why does that matter? Because the general rule is… Read more
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09 Pro se Issue/Holding: State failure to argue, in the trial court, that Miller’s 974.06 motion was barred under Escalona-Naranjo waived the argument on appeal: ¶25 We conclude that application of the waiver rule is appropriate here, and therefore decline to address the State’s… Read more
State v. Harold C. Mikkelson, 2002 WI App 152 For Mikkelson: Michael Yovovich, SPD, Madison Appellate Issue: Whether the state waived an appellate argument in opposition to suppression by not raising it at the suppression hearing. Holding: ¶14 “The waiver rule serves several important objectives. Raising issues at the [circuit] court level allows the …. court… Read more
