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Plea-Withdrawal – Pre-Sentence – Newly Discovered Evidence

State v. Jeremy K. Morse, 2005 WI App 223
For Morse: Amelia L. Bizarro

Issue: Whether Morse was entitled to plea-withdrawal on the basis of claimed newly discovered evidence, in the form of taped jail conversations between inmates discussing his case, and certain police reports.

Holding: The trial court’s findings that the tapes were inadmissible because not based on the declarants’ first-hand knowledge and were also vague and inconclusive, are not clearly erroneous, ¶17. Morse’s claim relative to a police report is also rejected, given trial court findings to the effect “that Morse knew about this evidence before he entered his plea,” ¶21.

Somewhat oddly, the court doesn’t explicitly discuss the applicable standard for plea-withdrawal. Morse sought plea-withdrawal after having been granted re-sentencing, and his motion therefore should have been treated as being in a pre-sentencing posture, thus triggering the “fair and just reason” standard. And, in fact, the court implcitly views the motion that way (concluding that “the taped recordings do not constitute a fair and just reason for permitting plea withdrawal”). As clearly, though, the ultimate standard for plea-withdrawal must take into account trial court findings of fact, as the holding amply illustrates.


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