On Point blog, page 92 of 118
Waiver – As Rule of Judicial Administration
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue/Holding:
¶43 Long did not advance this statutory interpretation argument at the circuit court or at the court of appeals. Normally, under such circumstances, we would conclude that an issue neither raised nor briefed is waived. Long’s sole recourse would be to file a motion for post-conviction relief,
Notice of Appeal – Contents – Inconsequential Error
State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney
Issue/Holding: ¶1 n. 1:
Haywood’s notice of appeal mistakenly asserts that he also appeals “from … the postconviction motion dated December 2, 2008.” First, Haywood’s appeal is from the circuit court’s order denying his motion, not from the motion. Second, the circuit court’s order is dated December 1,
Notice of Appeal – Contents: Failure to Identify Appealable Document; Notice of Intent as Substitute
Waukesha County v. Genevieve M., 2009 WI App 173
For Genevieve M.: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: ¶ 2 n. 2:
The failure of the notice of appeal to correctly identify the final appealable document is not fatal to appellate jurisdiction. See Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211,
Notice of Appeal – Contents: Chs. 54 (Guardianship) and 55 (Protective Placement) = 3-Judge Panel – Default for Combined 1-Judge and 3-Judge Panel Appeal = 3-Judge
Waukesha County v. Genevieve M., 2009 WI App 173
For Genevieve M.: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: Although a ch. 54 guardianship appeal is decided by a 3-judge and ch. 55 protective placement by a 1-judge panel, when the 2 were commenced and decided under a single trial court case number, the appeal will be decided by a 3-judge panel:
¶5 The plain language of Wis.
No-Merit Report – Counsel Appointed by Circuit Court Rather Than SPD
State v. Carl Davis Brown, Jr., 2009 WI App 169
For Brown: Paul G. Bonneson
For SPD: Colleen D. Ball, Milwaukee Appellate
Issue/Holding:
¶7 The statutes referenced in Wis. Stat. Rule 809.32(1)(a), relate to the appointment of counsel by the state public defender. Thus, pursuant to Rule 809.32(1)(a), an attorney appointed by the state public defender may file a no-merit report using the statutory scheme set out in Rule 809.32.
Postconviction Motions – § 974.06, Supports Sufficiency-of-Evidence Review
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: Because sufficiency of evidence to sustain the conviction is a matter of constitutional dimension, it may be raised via § 974.06 motion, ¶¶25-30.The court’s discussion also indicates, at least implicitly, that the State v. Obea S. Hayes, 2004 WI 80 holding (sufficiency claim not waived on direct appeal even though not raised in trial court) applies in the context of 974.06 review.
Waiver of Issue, Generally – Authority to Review Despite Lack of Contemporaneous Objection
State v. Michael Lee Washington, 2009 WI App 148
For Washington: Christopher Lee Wiesmueller
Issue/Holding: ¶1 n. 1:
The State asserts that Washington is precluded from making this argument on appeal because he did not object when the prosecutor made his recommendation before the circuit court. Generally, the failure to object is a “dispositive infirmity.” State v. Grindemann,
Review of Waived Issue: Plain Error – Generally
State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09For Lammers: Amelia L. Bizzaro
Issue/Holding:
¶12 “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat. § 901.03(4) recognizes the plain error doctrine,
State’s Waiver – Escalona-Naranjo (Serial Litigation) Argument
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: State failure to argue, in the trial court, that Miller’s 974.06 motion was barred under Escalona-Naranjo waived the argument on appeal:
¶25 We conclude that application of the waiver rule is appropriate here, and therefore decline to address the State’s Escalona argument. Waiver is a rule of judicial administration,
Issue Waiver: Jury Instruction – Failure to Object to Trial Court Response to Jury Question
State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding: By failing to object, defendant waived right to challenge judicial response to deliberating jury’s question, notwithstanding conceded unanimity problems in the response:
¶15 Nevertheless, we must agree with the State and hold that Becker waived his argument that the trial court erroneously exercised its discretion in answering the jury’s question in the manner it did.