On Point blog, page 97 of 118
Appellate Procedure: Respondent’s Waiver
State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR filed 11/1/07; on remand from supreme court, and affirming, 2006 WI App 163
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶12 Generally, we do not apply waiver against a respondent who is seeking to uphold a trial court ruling. See State v. Holt,
Waiver of Issue: Jury Instruction – Failure to Object to Limiting Instruction
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: Failure to object to the wording of a limiting instruction (limiting jury’s use of certain evidence to impeachment rather than substantive evidence of guilt) waived the right to challenge its efficacy, ¶¶34-36.
The court possesses discretionary authority to review and reverse in the interest of justice but “Cockrell does not contend that the real controversy was not tried because of the challenged jury instruction,” ¶36 n.
Binding Authority — Published Wisconsin Court of Appeals Opinion – Review by Supreme Court
State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Review of a published court of appeals’ decision by the supreme court leaves intact any portion of the opinion not reversed, ¶13 n. 4, citing State v. Jones, 2002 WI App 196, ¶40.
Jones itself holds:
We agree with the State that this exact claim has already been rejected in State v.
Binding Authority – Dicta, Generally
State v. Dwight M. Sanders, 2007 WI App 174, affirmed, 2008 WI 85
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶26 The State argues that our supreme court’s decision in Hughes validates the officers’ hot pursuit entry in this case. In Hughes, the court held that the crime of possession of marijuana was serious enough to justify the warrantless entry of an apartment under the exigent circumstance of preventing the destruction of evidence.
Appellate Procedure – Harmless Error Review – Conclusive Presumption
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding: Instructional error due to mandatory conclusive presumption wasn’t harmless:
¶28 As we have explained, the trial error consisted of an instruction that the jury must accept as true the elemental facts that Schultz acted inconsistently with the duties of her office and intended to obtain a dishonest disadvantage if the jury found that Schultz used state resources to promote a candidate or to raise money for political campaign purposes.
Commencing Appeal – Effect of Notice of Appeal to Non-Final Order – Construing as Petition for Leave to Appeal
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: Dismissal of an appeal as having been directed to a non-final order doesn’t in and of itself bar the court of appeals from deciding to grant leave to appeal, ¶7 n. 2:
In its jurisdictional memoranda, the State asks us to construe its notice of appeal as a petition for leave to appeal in the event that we decline jurisdiction over the appeal.
OWI – State’s Appeal: Collateral Attack on Prior OWI Conviction – Non-Final Order, Permission to Appeal Required
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2 A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.
OWI – Appellate Procedure: Finality of Order, State’s Appeal: Collateral Attack on Prior OWI Conviction
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2 A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.
Federal Habeas – Procedure – Appellate – Jurisdiction – Timeliness of NOA – Prison Mailbox Rule
Edmund Ingram v. Jones, 507 F. 3d 640 (Nos. 06-2766 & 06-2879, 11/14/07)
Issue/Holding: If a prison has a “legal mailing system,” and the inmate isn’t obligated to pay postage for legal mail, then the notice of appeal may be deemed filed when deposited in the system even without prepaid postage. However, “if a prison does not have a legal mailing system, the prisoner is required to show,
Finality of Order – Trial Court’s Inherent Authority to Reconsider Non-Final Order
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: Trial courts possess inherent authority to reconsider any non-final ruling prior to entry of final order or judgment, ¶13, citing State v. Bobby R. Williams, 2005 WI App 221, ¶17, 287 Wis. 2d 748, 706 N.W.2d 355.
The trial court reconsidered its own prior sua sponte vacatur of a guilty plea.