On Point blog, page 114 of 118
Guilty Plea Waiver Rule – Issues Waived — Ex Post Facto Challenge<
State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski
Issue: Whether Ramirez’s guilty plea waived an ex post facto challenge to the charged offense.
Holding: ¶4 n. 4:
We could invoke the guilty plea/waiver rule against Ramirez since he pled guilty to the charge after the trial court rejected his constitutional challenge. See State v.
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.
Waiver of Appeal — Arguably Meritorious Appellate Issue that Would Have Incurred Risk
State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate
Issue/Holding: Given circuit court findings “that Ford affirmatively elected not to pursue any issue that would result in the withdrawal of his plea and the possible reinstatement of a second sexual assault charge,” he is deemed to have knowingly and voluntarily waived his right to pursue a postconviction challenge to his guilty plea;
Appellate Procedure: Finality of Order — Subsequent Order Superceding Prior Order
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Issue: Whether the second of two competing orders granting a suppression motion superceded the first, so as to make the state’s notice of appeal timely.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.
Notice of Appeal – Indigency Filing – by Fax
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.
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.
Briefs – Content – “Vituperative Tone”
Mogged v. Mogged, 2000 WI App 39, 233 Wis. 2d 90, 607 N.W.2d 662
Issue/Holding: Brief adopting “vituperative tone” and making misleading, unsupported arguments violates Rules of Professional Conduct and is stricken. ¶¶21-24. (Note that the court cites 7th Circuit caselaw, ¶22, suggesting that decisions from that body are very pertinent.)
Appellate briefs containing personal attacks sufficiently inflammatory subject the author to the range of sanctions avaialble under the code of professional responsibility,
CHIPS Appeal – Commenced by NOI
Juneau County DHS v. James B., 2000 WI App 86, 234 Wis. 2d 406, 610 N.W.2d 144
For Appellant: James L. Boardman; Chris R. Velnetske
Issue: Whether the court of appeals acquires jurisdiction over a CHIPS appeal commenced by notice of appeal without prior notice of intent to pursue relief.
Holding: ¶4:
In CHIPS cases, appeals are commenced by first filing of a notice of intent to pursue postconviction relief,
Appellate Procedure: Finality of Order – Refusal to Bind Over
State v. Romero D. Wilson, 2000 WI App 114, 235 Wis.2d 177, 612 N.W.2d 368
For Wilson: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether an order dismissing a complaint, on refusal to bind over at preliminary hearing, is final and therefore appealable by the state.
Holding: An order dismissing a complaint is a final order, appealable by the state as of right (reaffirming State v.