On Point blog, page 71 of 122
State v. Courtney C. Beamon, 2011 WI App 131, rev. granted 4/25/12
court of appeals decision; for Beamon: Donna L. Hintze, SPD, Madison Appellate; case activity; prior post
Elements, Fleeing, § 346.04(3) – Instructions – Sufficiency of Proof – Harmless Error
Issues (from Beamon’s Petition for Review):
Is a jury instruction which describes the factual theory alleged to satisfy an element legally erroneous?
In a criminal case, are the instructions given the jury the law of the case against which the sufficiency of the evidence must be measured or,
Habeas – Procedural Bar: Waiver by State
Patrick Wood v. Milyard, USSC No. 10-9995, 4/24/12, reversing 403 Fed. Appx. 335 (10th Cir 2010)
This case concerns the authority of a federal court to raise, on its own motion, a statute of limitations defense to a habeas corpus petition. After state prisoner Patrick Wood filed a federal habeas corpus petition, the State twice informed the U. S. District Court that it “[would] not challenge,
§ 974.06 Motion – Custody Requirement; OWI – Enhancer
State v. David D. Austin, 2011AP1042, District 1, 4/10/12
court of appeals decision (1-judge, not for publication); pro se; case activity
Because Austin was no longer in custody under the conviction he sought to collaterally attack pursuant to § 974.06, the court lacked jurisdiction to entertain his motion. It is not enough that he was in custody under some sentence, rather than the particular conviction he sought to attack:
¶12 Austin submits that the wording of Wis.
Double Jeopardy – Mistrial over Objection – “Manifest Necessity”
State v. Levi Alexander Rodebaugh, 2011AP2659-CR, District 4, 4/5/12
court of appeals decision (1-judge, not for publication); for Rodebaugh: Bryon J. Walker; case activity
Grant of mistrial was unsupported by “manifest necessity,” hence was an erroneous exercise of discretion, where the complainant failed to show for trial and couldn’t be quickly located. Retrial is therefore barred as a matter of double jeopardy:
¶9 After Rodebaugh’s jury was sworn and jeopardy attached,
Appellate Jurisdiction – Final Order
Admiral Insurance Company v. Paper Converting Machine Co., 2012 WI 30; case activity
¶3 If we conclude that there is any ambiguity in an order or judgment about whether it disposes of the entire matter in litigation as to one or more of the parties, we will construe the ambiguity so as to preserve the right to appeal. …
…
¶26 We recently addressed what it means for a judgment or order to be final in Wambolt v.
Exculpatory Evidence – Police Personnel Records; Postconviction Procedure – Serial Litigation Bar: Supplement to Still-Pending Motion
State v. Christopher J. Anderson, 2009AP3053-CR, District 1, 3/27/12
court of appeals decision (not recommended for publication); pro se; case activity; prior history: 2008AP504-CR
Anderson’s prior appeal established that “the trial court erred when it denied his request for an in camera review of [police] personnel files because he had both a constitutional and statutory right to any exculpatory or impeachment evidence in the files,”
State v. Gerald D. Taylor, 2011AP1030-CR, rev. granted 3/15/12
court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; prior post
Issue (from Certification):
Whether understating the potential penalty during a plea colloquy can properly be deemed harmless error, and if so, where in the analytical framework of Bangert such a determination should be made.
The guilty plea court misinformed Taylor that the maximum he faced was 6,
Open Records / Public Access to Court Records: Treatment Records, Generally – NGI Conditional Release Plan; Appellate Procedure: “Aggrieved Party” Right to Appeal
In the matter of State of Wisconsin v. Bryan J. Stanley: La Crosse Tribune v. Circuit Court for La Crosse County, 2012 WI App 42 (recommended for publication); case activity
Open Records / Public Access to Court Records – Treatment Records, Generally
(Discussion with respect to newspaper’s Open Records request for information contained in NGI conditional release plan:)
¶25 While this is a criminal commitment case following an NGI finding under Wis.
Appellate Procedure: Traffic Forfeiture or Municipal Ordinance Appeal – Circuit Court Docket Entries Tantamount to Final Order
Village of McFarland v. Jennifer M. Zetzman, 2012 WI App 49 (recommended for publication); case activity
Appeal to the court of appeals of a municipal ordinance or traffic forfeiture disposition may be based on the circuit court docket entries instead of a written final order, whether the case originated in municipal or circuit court:
¶2 In this case, Jennifer Zetzman was convicted in municipal court of operating a motor vehicle while intoxicated and with a prohibited blood alcohol concentration.
Charging Document: Notice of Nature of Charge – Element of Force Omitted; Sentencing: Inaccurate Information – Misperceived Mandatory Minimum
State v. Lamont L. Travis, 2012 WI App 46 (recommended for publication), petition for review granted, 9/18/12; case activity
For unsuccessfully trying to put his hand down his 10-year-old niece’s pants, Travis was charged with, and pleaded guilty to, attempted first-degree sexual assault of a child under age 12, §§ 939.32, 948.02(1)(d). However, that particular form of assault requires use or threat of use of force and violence,