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Waiver – As Rule of Judicial Administration

 State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers


¶43 Long did not advance this statutory interpretation argument at the circuit court or at the court of appeals. Normally, under such circumstances, we would conclude that an issue neither raised nor briefed is waived. Long’s sole recourse would be to file a motion for post-conviction relief, perhaps alleging ineffective assistance of counsel.¶44 Nonetheless, waiver is merely a rule of judicial administration. State v. Moran, 2005 WI 115, ¶31, 284 Wis. 2d 24, 700 N.W.2d 884. Waiver does not limit this court’s authority to address unpreserved issues, particularly when doing so can clarify an issue of statewide importance. Clean Wis., Inc. v. Pub. Serv. Comm’n, 2005 WI 93, ¶¶270-71, 282 Wis. 2d 250, 700 N.W.2d 768. The proper interpretation of the persistent repeater statute is an issue of great importance in Wisconsin law. In this case, the circuit court, the State, and the defense attorneys misinterpreted the persistent repeater statute, and the court mistakenly sentenced Long to life imprisonment without the possibility of parole. Under these circumstances, we decline to conclude that this argument is waived.

Further authority re: non-jurisdictional nature of waiver rule: State v. David C. Polashek, 2002 WI 74, ¶25 (“… The court of appeals correctly noted that, although the general rule is that issues not raised in the circuit court are deemed waived, the rule is not absolute and does not relate to the appellate court’s jurisdiction. See Apex Elec., 217 Wis. 2d at 384. Because the issue involved a question of law that had been fully briefed by both parties, and was of sufficient public interest to merit a decision, the court of appeals exercised its discretion to address the issue…..”); State v. Peter R. Cash, 2004 WI App 63, ¶28, n. 11 (“While the trial court record supports the State’s waiver argument, we nevertheless address the merits of the issue ….”).

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