On Point: 1. Appeals

State v. Eric D. Gillespie, 2001 WI App 35, PFR filed 2/1/05
For Gillespie: John Anthony Ward

Issue: Whether, following bindover by court commissioner under § 757.69(1)(b), a defendant may obtain a “preliminary hearing de novo” (i.e., a second preliminary hearing) in circuit court under § 757.69(8).

Holding:

¶7 The State contends that WIS. STAT.

State v. Cherise A. Raflick, 2001 WI 129
For Raflik: Michael J. Fitzgerald, Dean A. Strang

Issue/Holding:

¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed.

State v. John Casteel, 2001 WI App 188, PFR filed

Issue: Whether the appeal is sufficiently frivolous to warrant sanctions.

Holding:

¶19. On five previous occasions, Casteel’s appeals have been dismissed based on Wis. Stat. § 974.06(4) and Escalona-Naranjo. This case is dismissed on the same basis. Because we conclude that Casteel knows or should know that this, his eighth postconviction order appeal, is without any reasonable basis in law or equity and is not supported by a good faith argument for an extension,

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.

State v. Debra Noble, 2001 WI App 145, reversed, other grounds, State v. Debra Noble, 2002 WI 64For Noble: Jeff P. Brinckman

Issue: Whether failure to cite relevant authority in support of appellate argument establishes waiver.

Holding:

¶11 … But Noble cites no authority requiring a tape recording, a transcript, or a signed statement to show the falsity of a statement.

State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke

Issue/Holding:

¶20. Our review of a claimed discovery violation under Wis. Stat. § 971.23 is subject to a harmless error analysis. See State v. Koopmans, 202 Wis. 2d 385, 396, 550 N.W.2d 715 (Ct. App. 1996). The test of harmless error is whether the appellate court in its independent determination can conclude there is sufficient evidence,

State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565, affirmed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak

Issue: Whether the defendant waived objection to the sentencing court’s reliance on information sealed from the defendant’s inspection.

Holding:

¶42 We accept the State’s waiver argument. First, just because the trial court was in its “imposing sentence”

State v. Michael W. Carlson, 2001 WI App 296
For Carlson: Steven L. Miller

Issue/Holding: Erroneous impaneling of a juror who, because he could not understand English, should not have been seated, wasn’t harmless beyond a reasonable doubt.

¶46. The harmless error rule adopted last term by this court in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442,

State v. Cherise A. Raflick, 2001 WI 129
For Raflik: Michael J. Fitzgerald, Dean A. Strang

Issue/Holding:

¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed.

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.