by Bill Tyroler's Case Summaries
on July 27, 2000
State v. Aaron Evans, 2000 WI App 178, 238 Wis.2d 411, 617 N.W.2d 220
For Evans: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether the trial court erroneously exercised discretion in preventing a DNA expert from sitting at counsel table.
Holding: “|10 We are satisfied that, on this record, the circuit court did not erroneously exercise its discretion in denying Evans’s request that Friedman be exempted from the sequestration order. Evans has not shown that Friedman’s presence in the courtroom was ‘essential to the presentation of [his] cause’ within the meaning of WIS. STAT. ? 906.15(2)(c). Helpful, perhaps, but not so essential that his attorney could not effectively function with Friedman in the hallway, rather than sitting next to him in the courtroom. Backes’s statements to the circuit court, and Evans’s assertions on appeal are characterized by generalization and vagueness. Friedman’s qualifications in the field of DNA testing were never established, and Evans has not detailed any specific way in which Friedman would have assisted him with respect to the DNA evidence. Finally, as we have noted above, the circuit court kept the door open for defense counsel to make a more specific showing as to the necessity for Friedman’s presence-an offer Evans never took up.”
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by admin
on June 26, 2000
State v. Dennis R. Thiel (I), 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94, on certification from court of appeals
For Thiel: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the ch. 980 respondent waived his objection to insufficient proof by absence of objection.
Holding: “(T)he subject of a commitment petition under ch. 980 is not required to voice an objection to the allegations contained in the petition…. Thus, Thiel’s failure to object to the admission of exhibits does not relieve the State of its statutorily defined burden to prove that its petition was filed within 90 days of his release.” ¶28.
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by admin
on June 25, 2000
State v. Patrick E. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, reversing 224 Wis. 2d 814, 592 N.W.2d 310 (Ct. App. 1999)
For Richter: Susan Alesia, SPD, Madison Appellate
Issue: Whether the second of two competing orders granting a suppression motion superceded the first, so as to make the state’s notice of appeal timely.
Holding: Under the circumstances, the trial court clearly intended the second order to supercede the first and the notice of appeal was therefore timely.
This is a somewhat technical appellate problem but recurrent and important nonetheless for trial practitioners. The time limit for appeal doesn’t begin running until a written order is entered. The deadline for a state’s appeal (on a suppression order such as this one) is 45 days. § 974.05. This time limit isn’t extendible, so an untimely notice of appeal can’t be rehabilitated. In this case, the trial court entered two separate orders (the first had been drafted by the defense, the subsequent one by the prosecution). The notice of appeal would be untimely as measured against the first order, timely as against the second. Generally, the entry of a “successive, nonconflicting” order doesn’t override a prior order; in other words, appeal can’t be taken from an order merely denying a motion for reconsideration. ¶¶22-23. In this case, however, for very fact-specific reasons the second order does supercede the first one. The trial court entered the first order before expiration of a five-day waiting period for objections provided by local circuit court rule. ¶20. The prosecution later indicated that it did have objections, and then submitted its own, proposed order without objection from the defense. Emphasizing the absence of any evidence of attempted manipulation of the appellate time clock, the court holds: “the circuit court’s second order, while not specifically vacating the earlier order, corrected the apparent mistaken entry of the first, and the one supplanted the other for all purposes, including the time for appeal.” ¶24.
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by admin
on June 25, 2000
State v. Ronald G. Sorenson, 2000 WI 43, 234 Wis. 2d 648, 611 N.W.2d 240, reversing unpublished decision of court of appeals
Issue: “(W)hether Wis. Stat. § 801.16(2), under which ‘papers that do not require a filing fee’ may be filed by facsimile transmission, permits indigent parties to file a notice of appeal by facsimile.”
Holding: ¶5:
We hold that a notice of appeal may be filed by facsimile transmission because a notice of appeal is not a paper that requires a filing fee to confer jurisdiction. The court of appeals obtained jurisdiction over this appeal when the clerk of the circuit court received Sorenson’s facsimiled notice of appeal within the statutorily prescribed time frame.
This is a Ch. 980 case. Sorenson, who was indisputably indigent, was appointed an attorney who faxed the notice of appeal to the clerk’s office on the last day for filing the notice of appeal. (Because 980 was then under civil appellate rules, the appeal deadline couldn’t be extended. § 809.82(2)(c).) Prior authority established that only papers not requiring filing fees could be filed by fax. Pratsch v. Pratsch, 201 Wis. 2d 491, 494-95, 548 N.W.2d 852 (Ct. App. 1996). The court of appeals nonetheless applied a uniform ban to fax-filing of all notices of appeal, fee-waived or not, because an assessment of indigency might not be made until after the notice of appeal was filed. ¶13. The supreme court reverses, making several points in the process. First, a notice of appeal filing fee isn’t a jurisdictional requirement; that is, failure to pay the fee at the time of filing isn’t fatal to jurisdiction. ¶¶18, 25. Second, an indigent isn’t required to pay a filing fee at any time during the appellate process. ¶26. Third, the appellate rules of procedure don’t specify that a notice of appeal must be accompanied by a filing fee. ¶27. Emphasizing that all litigants should be treated the same, the court holds that all litigants — indigent or not — may file notices of appeal by fax, overruling Pratsch. ¶28. The obligation to pay fees, in other words, may be determined after the fact. ¶29. The court cautions that a timely notice of appeal is an irrevocable requirement. ¶33. Moreover, this holding doesn’t mean that all documents can be filed by fax: papers requiring payment of a fee at the time of filing can’t be filed by fax, § 801.16(2); additionally, permission to file by fax must be secured by local rule or judge. ¶35.
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by admin
on June 25, 2000
State v. Paul E. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, reversing unpublished decision
For Magnuson: Keith A. Findley, UW Law School
Issue: Whether a defendant is entitled to sentence credit for time spent in home detention with electronic monitoring as a condition of bond.
Holding: Custody for sentence credit purposes is determined by whether the defendant’s status subjects him/her to an escape charge and, because home detention as a bond condition did not satisfy that test, Magnuson is not entitled to credit.
Magnuson was released on a signature bond, conditioned on a curfew requiring him to be inside a home overnight, while wearing an electronic bracelet to ensure compliance, ¶¶5-6. He seeks credit against his sentence for the preconviction time he spent in this home detention. Eligibility for sentence credit is regulated by Wis. Stat. § 973.155, which requires ” custody.” The supreme court has previously held that “custody” in this statute “corresponds to the definition of custody in the escape statute, Wis. Stat. § 946.42, ¶13. The court of appeals deviated from that bright-line test, in favor of case-by-case analysis. State v. Collett, 207 Wis. 2d 319, 324-25, 558 N.W.2d 642 (Ct. App. 1996). The court now rejects Collett‘s approach, in favor of the following bright-line rule: “for sentence credit purposes an offender’s status constitutes custody whenever the offender is subject to an escape charge for leaving that status,” ¶25. The court adds however, that “custody” isn’t narrowly cabined by the definition in the escape statute, § 946.42. Certain statutes expressly authorize escape charges based on flight from monitored situations: these “statutes provide additional reference points for circuit courts in determining whether a defendant is in custody for sentence credit purposes,” ¶30. (This holding seems to overrule prior case law. Id., n. 7.) Application of this test to Magnuson results in denial of credit. Violation of his bond conditions would not have subjected him to escape, though they may have been similar to programs that would have. Home detention may entitle the defendant to credit, when ordered by a sheriff, a superintendent, or DOC, under § 302.425, but Magnuson’s status was different, ¶38.
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by admin
on June 25, 2000
State v. Dale H. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, reversing State v. Davidson, 222 Wis. 2d 233, 589 N.W.2d 038
For Davidson: Jerome F. Buting & Pamela Moorshead
Issue: Whether objection to the prosecutor’s closing argument was waived by failing to move for mistrial.
Holding: Although Davidson objected to the closing argument, his failure to also move for mistrial waived the objection. ¶86. (Note: the court proceeds to review the waived objections under both plain error and interest-of-justice rationales, and denies relief. ¶88.)
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by admin
on June 25, 2000
State v. David W. Oakley, 2000 WI 37, 234 Wis. 2d 528, 609 N.W.2d 786, reversing State v. Oakley, 226 Wis. 2d 437, 594 N.W.2d 827 (Ct. App. 1999)
For Oakley: Timothy T. Kay
Issue: “(W)hether a circuit court may require payment of an old, unpaid fine that was imposed in a prior sentence as a condition of probation for a new conviction when violation of the condition of probation exposes the defendant to incarceration in county jail for more than six months.” ¶2.
Holding: Imposing payment of the old fine as a condition of the new probation violates § 973.07, at least where the potential exposure for violating probation would be more than six months incarceration (adopting position of dissent in court of appeals). Id.
Oakley was convicted of an offense carrying a 10-year maximum. The trial court put him on probation with a withheld sentence, and imposed a condition that he pay a prior, otherwise unrelated fine. The court of appeals said that this was a reasonable condition that would rehabilitate Oakley’s defiant attitude. The supreme court now says that the condition violates § 973.07, which allows commitment for up to six months in jail for failure to pay a fine. Because of this limitation, the trial court erred as matter of law in conditioning probation on payment of a fine where exposure for non-payment would be more than six months, ¶15. § 973.07 specifically limits a trial court’s otherwise broad authority to impose “reasonable and appropriate” conditions, ¶26.
The dissenters would permit this condition, with the proviso that failure to comply with the condition could result in no more than six months in jail. They also note that this sort of condition “is a common practice in some circuit courts in this state[.]” The net effect, they say, will be to preclude conditioning probation on discharging unpaid fines except in a few misdemeanor cases, ¶¶29-31. They apparently agree that revocation and sentence of more than six months would violate § 973.07, ¶36. Their solution would allow a defendant to be confined as a further condition of probation, for up to six months, for non-payment,1999 ¶32. (Note: What if the prior obligation was itself a condition of a now-lapsed probation? In that variation of this problem, double jeopardy may well preclude its resurrection in the new probation. L.C. v. State, 114 Wis.2d 223, 338 N.W.2d 506 (Ct. App. 1983).)
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by admin
on June 23, 2000
State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
For Leighton: Daniel Snyder
Issue/Holding: In setting parole eligibility date trial court need not separately refer to primary factors used in imposing sentence. ¶¶52-53.
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