On Point blog, page 336 of 485
Miranda – Waiver – Re-Administration of Rights Unnecessary
State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell
Issue/Holding: Where Miranda rights were properly given at the outset of the “first segment” of interrogation, re-administration of rights wasn’t necessary for “second segment,” several hours later, ¶¶24-28.
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,
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.
Name Change, Judgment of Conviction – Based on Claim of Common Law Right to Change Name
State v. Jermaine Smith, 2009 WI App 104
Pro se
Issue/Holding:
¶1 Jermaine Smith appeals from an order denying his “motion to amend his Judgment of Conviction to reflect his common law spiritual name,” which he states is “Marcolo Von Capoeira.” Because Smith’s motion fails to provide any support for his assertion that he used the name Marcolo Von Capoeira for ten years (including four years prior to the time his crime was committed) and because he did not raise this issue during his criminal case,
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,
Restitution – “Victim” – Governmental Entity – School District
State v. Derick G. Vanbeek, 2009 WI App 37, PFR filed 3/13/09
For Vanbeek: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: On conviction for making a false bomb scare, § 947.015, Vanbeek is liable in restitution to the school district for salaries and benefits paid to teachers and staff during the resulting 4-hour evacuation, because the school district was a “direct victim” of the crime.
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.