On Point blog, page 7 of 10
Appellate Procedure: “Waiver,” Distinguished from “Forfeiture” – Civil Case Necessity of Post-Trial Motion
J. K. v. Mark Peters, 2011 WI App 149 (recommended for publication); case activity
Appellate Procedure – “Waiver,” Distinguished from “Forfeiture”
¶1 n. 1:
In using the term “waiver,” we are aware of the recently decided case of State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, where our supreme court clarified the distinction between the terms “forfeiture” and “waiver.” See id.
Mootness Doctrine
Managed Health Services Insurance Corp. v. Wisconsin DHS, 2010AP2551, District 1, 9/7/11
court of appeals decision (recommended for publication ); case activity
Managed Health’s appeal related to contract procurement is dismissed as moot; because of failure to seek a stay of the trial court’s order allowing the process to continue, the contracts have already been let, and therefore even if Managed Health were to prevail, no remedy could be awarded.
TPR – Mootness
Kenosha County DHS v. Amber D., 2011AP667, District 2, 9/7/11
court of appeals decision (1-judge, not for publication); for Amber D.: Philip J, Brehm; case activity
Mother’s termination appeal, explicitly linking itself to outcome of father’s then-pending appeal, rendered moot by latter’s unsuccessful outcome:
¶1 Amber D. appeals from an order terminating her parental rights. At the time that she wrote her brief, the father’s appeal was pending.
Parole: Mootness Doctrine, rel. to Deferment – Review of Deferment, Risk-Determination
Harlan Richards v. Graham, 2011 WI App 100(recommended for publication); for Richards: Kendall W. Harrison, Jennifer L. Gregor; case activity
Mootness Doctrine
Challenge to Parole Commission decision to increase deferment period from 10 to 12 months, and to Program Review Committee decision to increase security status, not rendered moot by subsequent parole and program hearings.
¶11 An issue is moot when a party seeks a determination that will have no practical effect on an existing legal controversy.
Appellate Procedure, Mootness Doctrine: Repetition-Review Doctrine; Right to Counsel, Civil Proceeding: Doesn’t Automatically Attach, Even Where Incarcerative Consequence
Michael D. Turner v. Rogers, USSC No. 10-10, 6/20/11
Appellate Procedure – Mootness Doctrine
Turner’s appeal – he challenges denial of appointed counsel in a civil contempt proceeding but has fully served the resultant 12-month sentence – isn’t moot:
The short, conclusive answer to respondents’ mootness claim, however, is that this case is not moot because it falls within a special category of disputes that are “capable of repetition” while “evading review.” Southern Pacific Terminal Co.
Forfeiture of Issue, Generally
Kevin S. Dalka v. American Family Mutual Ins. Co., 2010AP1428, District 2, 5/24/11
court of appeals decision (recommended for publication); case activity
¶5 Dalka forfeited his right to appellate review of the order compelling him to accept the settlement offer. … It is a fundamental principle of appellate review that issues must be preserved in the circuit court. State v. Huebner, 2000 WI 59,
Reasonable Suspicion, Terry Stop: High-Crime Area, Ski Mask, et al.; Appellate Procedure: State’s Waiver of Argument
State v. Deshon C. Matthews, 2011 WI App 92 (recommended for publication); for Matthews: Paul G. Bonneson; case activity
Terry Stop – Reasonable Suspicion
Reasonable suspicion supported stop of Matthews, when police on patrol saw him wearing a ski mask and hoodie late at night in a high-crime area near a woman who was walking away form him and who appeared to be frightened.
Appellate Procedure: Harmless Error (Verdict Forms) – Waiver (Failure to Object to Testimony)
State v. Andre D. Hansbrough, 2011 WI App 79(recommended for publication); for Hansbrough: Amelia L. Bizzaro; case activity
Verdict Forms – Harmless Error
Failure to provide a not guilty verdict option with a lesser included offense instruction is, although error, not structural but is instead subject to analysis for harmlessness, ¶¶10-17.
¶9 At the outset, we reject Hansbrough’s contention that there must always be a not guilty verdict form for each guilty verdict form.
Appellate Procedure: Waiver (Lesser Offense Instruction) – Binding Authority (Overruled Court of Appeals Decision); Counsel: Deficient Performance – Unsettled Law; Voluntary Statements; Adult Jurisdiction over Juvenile: Post-Trial Reverse Waiver Procedure Constitutional
State v. Darron D. Jackson, 2011 WI App 63 (recommended for publication); for Jackson: Rebecca Lawnicki; case activity
Waiver – Lesser Offense Instruction
The jury convicted Jackson of recklessly endangering safety while armed, which was submitted as a lesser offense of the charged offense, attempted first-degree intentional homicide. Although Jackson did object to the endangering instruction on the ground that it wasn’t supported by the facts,
Appellate Procedure – Mootness Doctrine; Sentencing Review – Consideration of Pending Charge
State v. Thomas J. Hoffman, 2010AP1327-CR, District 2, 3/30/11
court of appeals decision (1-judge, not for publication); for Hoffman: Kathleen A. Lindgren; case activity
Hoffman’s challenge to the length of his sentence became moot once he had fully served it.
¶6 At the outset, the State contends that Hoffman’s appeal is moot; he has served his entire seven-month sentence and this court’s review on his motion for sentence modification will have no practical effect.