On Point blog, page 386 of 484
Reconstruction of Missing Transcript – Counsel-Waiver Proceeding
State v. Joseph P. DeFilippo, 2005 WI App 213
For DeFilippo: Leonard D. Kachinsky
Issue/Holding: To be valid, waiver of right to counsel in criminal trial proceeding must be supported by adequate record, ¶5 (citing State v. Klessig, 211 Wis. 2d 194, 203-04, 564 N.W.2d 716 (1997)). Where, as here, the record fails to make such a showing (because waiver occurred in an unrecorded conference),
Sealed File
State v. John Doe, 2005 WI App 68
For John Doe: Amelia L. Bizzaro (the court file has been ordered sealed, and the caption amended “to shield the defendant’s identity”)
Issue/Holding:
¶11. We next address the defendant’s allegation that the trial court erroneously exercised its discretion when it denied his request to file his sentence modification motion under seal. “Documents are presented under seal precisely so that their secrecy might be preserved and disclosure to the public might be prevented.”
Appellate Procedure – Waiver of Argument: Confrontation – Relevance Objection Insufficient
State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall
Issue/Holding: An objection on relevancy grounds does not preserve a confrontation-based argument, ¶14.
Waiver of Issue: Challenge to Delinquency Placement Order, Timeliness
State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee Trial
Issue: Whether challenge to an earlier change-of-placement delinquency order, as a means of challenging the jurisdictional basis for the current ch. 980 commitment petition, comes too late to be entertained.
Holding:
¶8 The State first responds that Tremaine’s challenge to the 2001 change of placement order is too late,
Waiver of Issue: Failure to Obtain Ruling by Trial Court on Objection
State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski
Issue/Holding: Where the State admitted to breaching the plea bargain, and the defendant was explicitly offered the option of seeking plea-withdrawal but personally affirmed that he did not wish that remedy, the appellate court has “nothing to review on this issue since the trial court was never asked to make a ruling on the question,” ¶12.
Waiver of Issue: Unobjected-to jury instruction – Discretionary Authority to Review
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller
Issue/Holding: ¶8 n. 2:
We observe that Draughon did not object to the jury instruction when provided the opportunity by the circuit court. Draughon nonetheless raises his objection here under color of his ineffective assistance of counsel claim as well as his claim that the real controversy was not fully tried.
Binding Authority – Dicta, Conflicting With Supreme Court Precedent, Withdrawal by Court of Appeals
State v. Kenneth V. Harden, 2005 WI App 252
For Harden: Ralph Sczygelski
Issue/Holding: Holding of Wisconsin supreme court binds the court of appeals, such that dicta in decision of latter court in conflict with supreme court holding must be withdrawn, ¶5 citing, Nommensen v. American Continental Ins. Co., 2000 WI App 230, ¶16, 239 Wis. 2d 129, 619 N.W.2d 137.
Just to be perfectly clear: the court of appeals does not have authority to overrule its ownprecedent,
Restitution — Nexus — Generally
State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate
Issue/Holding:
¶13 Second, before a trial court may order restitution “there must be a showing that the defendant’s criminal activity was a substantial factor in causing” pecuniary injury to the victim in a “but for” sense. Longmire, 272 Wis. 2d 759, ¶13; State v.
Restitution — Special Damages — Generally
State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen, SPD, Madison Appellate
Issue/Holding:
¶12 First, restitution is limited to “special damages … which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.” Wis. Stat. § 973.20(5)(a). The term “special damages” as used in the criminal restitution context means any readily ascertainable pecuniary expenditure paid out because of the crime.
Restitution — Damages — Causation — Lost Profits
State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate
Issue/Holding1: Lost profits are “special damages,” and therefore subject to a restitution order, because the underlying causal criminal conduct could give rise to a civil action based on the torts of conversion and interference with prospective contractual relationships, ¶¶16-17.
Issue/Holding2: Because at least a minimal amount of speculation inheres to such a claim,