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Interlocutory Appeal – Timeliness

State v. David C. Polashek, 2002 WI 74, affirming in part and reversing in part, State v. Polashek, 2001 WI App 130, 246 Wis. 2d

For Polashek: Nila Jean Robinson

Issue: Whether the state’s petition for leave to appeal a non-final order was timely, where the order was issued “nunc pro tunc” in reference to an earlier letter in which the court set forth its inclination to rule against the state.

Holding: The appeal is timely, for two reasons. First, the letter was not an order, its plain text anticipating the possibility of further developments; the “nunc pro tunc” label cannot create a retroactive order where none previously existed. ¶15, citing with approval, State v. Jeffrie C.B., 218 Wis. 2d 145, 150, 579 N.W.2d 69 (Ct. App. 1998). Second, “the court of appeals exercised its discretionary power to waive the non-jurisdictional timeliness issue.” ¶16. (This casual aside leaves a bit unsaid. It remains true that an appeal or cross-appeal of a final judgment or order, other than under R. 809.30 or R. 809.40, may not be extended. R. 809.82(2). But this case involves a petition for leave to appeal a non-final order, R. 809.50, and therefore doesn’t come under that jurisdictional straight-jacket. The long and short of it is that the court of appeals has authority to extend the 14-day deadline for filing a Rule 809.50 petition.

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