On Point blog, page 9 of 10
Waiver of Issue: Statutory Double Jeopardy – Guilty Plea Rule
State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/16/02
For Lasky: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Claim of “statutory double jeopardy,” § 939.71, not barred by guilty plea waiver rule; court therefore may consider merits of whether elements of federal bank robbery conviction are the same, and therefore preclude prosecution of, state armed robbery.
Waiver of Issue: Territorial Jurisdiction Defense
State v. Anthony J. Randle, 2002 WI App 116, PFR filed 4/2/02
For Randle: Paul G. Bonneson
Issue: Whether a territorial jurisdiction objection (that none of the constitutent elements occurred in the state, § 939.03(1)) is waived by guilty plea to a lesser offense.
Holding:
¶14 In this case, we need not decide whether a defendant may waive territorial jurisdiction altogether-that is, when an issue arises as to whether the charging document charges a crime that is committed wholly outside the territorial jurisdiction of Wisconsin.
Guilty Plea waiver Rule – Issues Waived — Double Jeopardy
State v. Jimmie Davison, 2002 WI App 109, overruled on other grounds, 2003 WI 89, ¶111
For Davison: Keith A. Findley, UW Law School
Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13.
Plea Bargains — Breach: Proecdural Issues — Waiver of Objection — Renegotiated Plea
State v. David W. Oakley, 2001 WI 103, 629 N.W.2d 308, reconsideration denied, 2001 WI 123, affirming unpublished decision of court of appeals
For Oakley: Timothy T. Kay
Issue: Whether a claim of plea bargain error was waived by a subsequent renegotiation of the plea bargain and entry of no contest plea on that new agreement.
Holding:
¶23 As this court has previously stated,
Waiver of Issue: Multiplicity
State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether multiplicity claims were waived due to lack of objection until after trial. Holding: Although it isn’t necessary to raise a multiplicity challenge before trial, waiver attaches if “also omitted prior to the time the case was submitted to the jury.” ¶40.
The court’s holding seems to be informed by two notions.
Double Jeopardy – Multiplicity: Judicial Estoppel Bar to Arguing
State v. Michael Johnson, 2001 WI App 105
For Johnson: David R. Karpe
Issue: Whether defendant’s partially successful trial strategy of defending against two counts of possession of intent to deliver of claiming personal use on one count and denial of any knowledge of the substance in the second count judicially estopped him from arguing on appeal that the two counts are multiplicitous.
Holding:
¶10.
Rights Waived – Self-Incrimination – Retention of Privilege – NGI Phase
State v. James G. Langenbach, 2001 WI App 222
For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.
Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal,
Plea Bargains — Breach: Procedural Issues — Preservation by Objection
State v. John D. Williams, 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164, affirmed without discussing this issue, 2002 WI 1
For Williams: John A. Pray
Issue: Whether the defendant properly preserved objection to a prosecutorial breach of plea bargain.
Holding: ¶13:
(T)he trial court recognized it as an objection and initially agreed with Williams’s attorney. The objection was sufficient.
Closing Argument — Failure to Move for Mistrial
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.
Issue-Preservation: Suppression of Evidence – Sufficiency of objection
State v. Lucian Agnello, 226 Wis.2d 164, 593 N.W.2d 427 (1999), reversing unpublished decision
For Agnello: Jerome F. Buting & Pamela Moorshead, Buting & Williams
Issue/Holding: On a motion to suppress statement, counsel’s bare relevancy objection to an inquiry into the statement’s truthfulness is held sufficient to preserve a Rogers v. Richmond/Jackson v. Denno objection. This holding is summed up by the following passages:
¶12 There is no question that Agnello’s objection was not as specific as it could have been.