On Point blog, page 18 of 23
Waiver of Argument: Constitutionality of Statute – Facial Challenge
State v. Thomas H. Bush (III), 2005 WI 103, reversing in part and affirming on the merits, 2004 WI App 193
For Bush: Robert G. LeBell
Issue/Holding: Although an “as applied” challenge to a statute may be waived, a facial challenge, in contradistinction, is not waivable, ¶17:
¶18 This rule is also entirely consistent with our line of cases that recognize that a criminal complaint which fails to allege any offense known at law is jurisdictionally defective and void.
Waiver of Issue: Jury Polling: Response Indicating Non-Unanimous Verdict
State v. Eric W. Raye, 2005 WI 68, reversing unpublished decision of court of appeals
For Raye: Brian C. Hough
Issue: Whether the defendant failed to lodge contemporaneous objection (which would have waived appellate challenge) to a non-unanimous verdict revealed during jury polling when a juror indicated he did not in fact subscribe to the purported guilty verdict.
Holding:
¶29 Ultimately,
Briefs – Factual Assertions – Need for Accuracy
Arents v. ANR Pipeline Co., 2005 WI App 61
Issue/Holding: ¶5 n. 2:
Wisconsin Stat. Rule 809.19(1)(d) and (e) (2001-02) requires the parties to provide in their briefs separate sections for their “statement of facts relevant to the issues presented for review” and argument. In their appeal, the Landowners have, inappropriately, interspersed legal argument and “spin” into what should have been an objective recitation of the factual occurrences of this case.
Reconstruction of Missing Transcript – Counsel-Waiver Proceeding
State v. Joseph P. DeFilippo, 2005 WI App 213
For DeFilippo: Leonard D. Kachinsky
Issue/Holding: To be valid, waiver of right to counsel in criminal trial proceeding must be supported by adequate record, ¶5 (citing State v. Klessig, 211 Wis. 2d 194, 203-04, 564 N.W.2d 716 (1997)). Where, as here, the record fails to make such a showing (because waiver occurred in an unrecorded conference),
Appellate Procedure – Waiver of Argument: Confrontation – Relevance Objection Insufficient
State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall
Issue/Holding: An objection on relevancy grounds does not preserve a confrontation-based argument, ¶14.
Waiver of Issue: Challenge to Delinquency Placement Order, Timeliness
State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee Trial
Issue: Whether challenge to an earlier change-of-placement delinquency order, as a means of challenging the jurisdictional basis for the current ch. 980 commitment petition, comes too late to be entertained.
Holding:
¶8 The State first responds that Tremaine’s challenge to the 2001 change of placement order is too late,
Waiver of Issue: Failure to Obtain Ruling by Trial Court on Objection
State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski
Issue/Holding: Where the State admitted to breaching the plea bargain, and the defendant was explicitly offered the option of seeking plea-withdrawal but personally affirmed that he did not wish that remedy, the appellate court has “nothing to review on this issue since the trial court was never asked to make a ruling on the question,” ¶12.
Waiver of Issue: Unobjected-to jury instruction – Discretionary Authority to Review
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller
Issue/Holding: ¶8 n. 2:
We observe that Draughon did not object to the jury instruction when provided the opportunity by the circuit court. Draughon nonetheless raises his objection here under color of his ineffective assistance of counsel claim as well as his claim that the real controversy was not fully tried.
Evidence, Admissibility – Sufficiency of Objection
State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams
Issue: Whether objection to admissibility of a defendant’s statement on the ground that it was “an offer of settlement” (which thus raised a § 904.08 bar) sufficed to raise a § 904.10 objection of an inadmissible offer to plead guilty.
Holding:
¶17 First, at the very least, trial counsel’s objection should have led the court to Wis.
Appellate Procedure – Waiver: Competency of Trial Court
Village of Trempeleau v. Mike R. Mikrut, 2004 WI 79, affirming unpublished decision
Issue/Holding: (Emphasis supplied)
¶15. Mikrut did not raise his challenge to the circuit court’s competency until long after the judgment against him had been upheld on appeal. The circuit court and the court of appeals therefore held that the argument was waived. ……
¶18. Wisconsin case law is inconsistent on the question of whether a challenge to the circuit court’s competency is subject to the common-law rule of waiver.