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Court of appeals rejects claim that counsel became a witness in his client’s case and should have withdrawn

State v. Kimberly C. Thomas, 2018AP304-CR, 1/15/19 (1-judge opinion, ineligible for publication); case activity (including briefs)

On the morning of her final pretrial, Thomas called her lawyer’s office to say that she just got a job, had to start that day, and couldn’t make the conference. When she didn’t show, she was charged and convicted of bail-jumping. She asserted ineffective assistance of counsel because her lawyer didn’t defend her absence. Also, he was a witness to her bail-jumping, so he should have withdrawn before the case went to trial.

To prove misdemeanor bail jumping under §946.49(1)(a), the State had to show that Thomas (1) was charged with a misdemeanor, (2) was released from custody on bond, and (3) intentionally failed to comply with the bond’s terms. The court of appeals noted that Thomas knew of her court date, knew that her appearance was a condition of her bond, and failed to appear for court. Thus, the State established the intent element of the crime without reliance on any communication between Thomas and her trial lawyers. Opinion, ¶12.

The court of appeals also rejected Thomas’s allegation that if her trial lawyer had withdrawn, successor counsel would have called him as a witness at trial, and the outcome of the bail jumping charge would have been different. It considered her argument undeveloped and speculative. Her motion did not allege how her trial lawyer would have testified or how his testimony might have affected the trial’s outcome. Opinion, ¶14. And at her Machner hearing, she failed to develop any evidence on these points. Opinion, ¶15.


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