On Point

COA dismisses appeal for lack of jurisdiction where one count is not “final” due to deferred judgment agreement.

State of Wisconsin v. Gustin J. King, 2024AP2064-CRNM, 2/18/26, District II (recommended for publication) (per curiam); case activity

The COA, in the first published decision on the issue, holds that it does not have jurisdiction to review a judgment of conviction when one or more of the criminal counts is unresolved due to the existence of a deferred judgment agreement (DJA).

Gustin King pled guilty to three misdemeanors and a felony in 2023.  He was sentenced for the misdemeanors but entered a DJA with respect to the felony.  The DJA states that if he completes its terms, the State will dismiss the felony with prejudice.  If he violates the conditions of the DJA, King must return to court for sentencing.  (¶ 2).  The DJA expires in October 2026.

King’s appellate counsel filed a no-merit notice of appeal in 2024.  But the COA concluded  it did not have jurisdiction to consider the no-merit appeal because the judgment of conviction did not dispose of the entire matter in litigation as required by Wis. Stat. § 808.03(1) (defining “final judgment” or “final order” as disposing of “the entire matter in litigation as to one or more of the parties”).  (¶ 9).

The COA rejected King’s counsel’s argument that the DJA “disposed of” the felony count because “disposal was precisely the thing being deferred.  Our current understanding is that every charged criminal count must eventually conclude with either dismissal or a conviction.  King’s DJA postponed both of those acts, and instead required the circuit court to perform one of them in the future.”  (¶ 9).