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Motion for Reconsideration – While (SVP) Appeal Pending

State v. Shawn D. Schulpius, 2004 WI App 39, PFR granted 4/20/04
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: Pendency of appeal doesn’t prevent trial court from hearing motion to reconsider, ¶33, n. 8:

Second, Schulpius argues that the trial court did not have jurisdiction to grant on November 29, 2000, the State’s motion for reconsideration because the case was then on appeal. We disagree. Wisconsin Stat. § 808.075(1) specifically permits the trial court to entertain motions for reconsideration pending appeal and there is nothing in either § 808.075 or in Wis. Stat. ch. 980 itself to the contrary. As the supreme court recently reiterated:

Motions for reconsideration pending appeal serve an important function. A circuit court’s reconsideration may obviate the need for an appeal. Allowing such motions could, therefore, not only spare the parties unnecessary expense, but could also serve the goal of judicial economy. Even if an appeal is not avoided, a motion for reconsideration enables a circuit court to hone its analysis and thus expedite the appellate review process.

Highland Manor Assocs. v. Bast, 2003 WI 152, ¶17, No. 02-2799 (footnote omitted).

Nor was the motion untimely, though made 3+ years after-the-fact: it “was based on contemporaneously acquired evidence … and was thus not a new spin on old facts.” The court declines to “put a time-limit on the State’s ability to bring new information to the trial court that bears on the risk that a sexually violent person ordered to be placed on supervised release may pose to the community.” Id.

But note: The result – that the prosecution properly moved the court under § 806.07 to reconsider its earlier ruling in favor of release seemingly conflicts with State v. William L. Morford, 2004 WI 5 (“¶5 We hold that Wis. Stat. § 980.08(6m), rather than § 806.07(1)(h), governs granting relief to the State from a chapter 980 committee’s supervised release when the committee is confined in an institution awaiting placement on supervised release. … ¶55 Allowing a circuit court to initiate proceedings on its own motion, as it in effect did here, or allowing a district attorney to initiate proceedings, as happened here, is contrary to the intent of the legislature, subjugates the authority of the department to the will of a circuit court or district attorney and vitiates an important safeguard the legislature provided for sex offenders.”), released after Schulpius.


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