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Waiver of Argument: Failure to Raise Issue with Sufficient Prominence

 State v. Rick L. Edwards, 2003 WI App 221, PFR filed 10/24/03
For Edwards: Margaret A. Maroney, SPD, Madison Appellate

¶8. As a threshold matter, we reject Edwards’ challenge to the trial court’s order staying Edwards’ conditional jail time because the order was issued ex parte and without notice. We hold that Edwards failed to raise this issue with sufficient prominence before the trial court. Schwittay v. Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶16 n.3, 246 Wis. 2d 385, 630 N.W.2d 772 (“A party must raise an issue with sufficient prominence such that the trial court understands that it is called upon to make a ruling.”). True, Edwards’ motion stated as a matter of historical fact that the trial court had amended the judgment of conviction without a hearing. However, Edwards never argued this fact as a basis for the confinement credit he was seeking. Since Edwards failed to signal that this was a basis for his motion, the trial court understandably did not speak to this fact in its ruling.4

4 Even if we were to address the issue on the merits, we would reject Edwards’ argument because he has failed to demonstrate any prejudice. Although the trial court entered the stay order ex parte, the court functionally revisited the question at the postconviction proceeding and confirmed its prior ruling.

This ruling is incoherent: if Edwards didn’t raise the issue with “sufficient prominence” to induce a ruling, then how is that the trial court indeed “functionally revisited the question”? And what, for that matter, does the court mean by re-visited? The issue – whether the trial court erred in modifying a probation condition ex parte – was never “visited” until the postconviction motion; the very motion the court of appeals says didn’t sufficiently raise the issue. Nonetheless, the principle is worth absorbing: the theory supporting a request for relief must be made explicit and attention adequately drawn to it.

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