On Point: 46. WI Court of Appeals

State v. Lucian Agnello II, 2004 WI App 2, (AG’s) PFR filed 1/8/04, on appeal after remand, 2003 WI 44; prior history: State v. Agnello I, 226 Wis.2d 164, 593 N.W.2d 427 (1999)
For Agnello: Jerome F. Buting, Pamela Moorshead

Issue: Whether the defendant is entitled to withdraw his guilty plea and to have a trial under the supreme court’s mandate in his prior appeal,

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether attorney fees, incurred by the victims in seeking damages under the contract underlying this theft by contractor case, are subject to restitution.

Holding:

¶29. Longmire contends the trial court erred because the “American Rule” requires litigants in a civil action to bear their own litigation costs,

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether expenditures by victims to correct shoddy work done by defendant in theft by contractor case may be subject to restitution.

Holding:

¶23. We conclude that these costs, incurred by the homeowners and admittedly arising out of their dealings with Longmire, are not recoverable as a separate item of restitution under Wis.

State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler

Issue/Holding: ¶5, n. 2: “Technically, Stenzel is seeking a modification of a sentence imposed by an erroneous exercise of discretion; resentencing is only available if the initial sentence is vacated because it was illegally imposed. State v. Carter, 208 Wis. 2d 142, 146-47, 560 N.W.2d 256 (1997).”

Well,

State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: Where the term of initial confinement exceeds the permissible maximum, based on the rule that this term may not exceed 75% of the total sentence, the error is not harmless even though the term is less than the maximum that could have been imposed had the maximum sentence been given;

State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Because the “presentence investigation was not part of the accusatory stage of a criminal proceeding”; and because the PSR “interview was routine and was not conducted while Jimmie’s jeopardy was still in doubt, Jimmie, “unlike the defendant in Estelle,

State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue: Whether the holding of State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989) with respect to confidentiality of presentence reports “only prohibited use of information obtained during the presentence investigation in a subsequent trial concerning the same charges,

State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: ¶¶21-22: Confidentiality of court-ordered presentence reports, State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989) is not a right applicable to defense-prepared PSRs, State v. Thomas A. Greve,

State v. Timothy Scott Bailey Smith, Sr., 2004 WI App 116, reversed on other grounds, 2005 WI 104
For Smith: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:

¶10 The State points out that omissions in jury instructions are subject to a harmless-error analysis. See State v. Harvey, 2002 WI 93, ¶6, 254 Wis. 2d 442, 647 N.W.2d 189.

State v. Sylvester Sigarroa, 2004 WI App 16, PFR filed 1/2/04
For Sigarroa: John Pray, UW Law School

Issue/Holding: A witness’s improper reference to the defendant’s prior criminal history was not prejudicial, where the judge ordered it struck, gave the standard final instruction on ignoring all things stricken, and the evidence of guilt was overwhelming. ¶27.

Also see State v. Gary M.B.