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Cross-Appeal by Defendant: Extension of NOA Deadline

State v. Keith E. Williams, 2005 WI App 122
For Williams: Christopher William Rose

Issue/Holding: The court of appeals has authority to extend the defendant’s deadline for filing cross-appeal to State’s appeal of postconviction grant of new trial:

¶4        However, as the State points out, the jurisdiction of the circuit court was initially invoked by the motion for postconviction relief under Wis. Stat. Rule 809.30(2)(h). Williams’s right to appeal or to cross-appeal stems from his pursuit of postconviction relief under Rule 809.30. The time for a person [3] to take various steps in pursuing postconviction relief under Rule 809.30, including the time for filing a notice of appeal, can be extended. See State v. Harris, 149 Wis.  2d 943, 946, 440 N.W.2d 364 (1989). The filing of a notice of cross-appeal is a continuation of the pursuit of postconviction relief under Rule 809.30. Thus, the time for a person to file a notice of cross-appeal from the Rule 809.30(2)(i) postconviction order can be extended.

¶5        Applying the same procedures to the defendant’s right to appeal and to cross-appeal comports with due process. See Harris, 149 Wis. 2d at 947 n.5.  It also preserves the defendant’s constitutional right to raise possible error on appeal. See State v. Perry, 136 Wis. 2d 92, 99, 401 N.W.2d 748 (1987) (“Any failure of the appellate process which prevents a putative appellant from demonstrating possible error constitutes a constitutional deprivation of the right to appeal.”).

 [3]   Wisconsin Stat. Rule 809.30(1)(b) defines “person” to be a defendant seeking postconviction relief in a criminal matter and does not include the State.  The State’s time to appeal in a criminal matter may not be extended.

The court goes on to find, without discussion, good cause for the extension (¶6). The court merely notes, somewhat cryptically (¶2), Williams’ position “that it recently became apparent that a cross-appeal is necessary to obtain review of other issues in the event the circuit court’s decision granting a new trial is reversed.”


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