On Point: 46. WI Court of Appeals

State v. Gary M.B., 2003 WI App 72, affirmed, 2004 WI 33
For Gary M.B.: T. Christopher Kelly
Issue/Holding:

¶11. As Gary correctly notes, however, we are not bound by the Ohler decision because the Supreme Court’s holding did not rest on an interpretation of U.S. Constitutional or other “federal law” that we must apply in this case.

State v. Steven G. Walters, 2003 WI App 24, reversed on other grounds, 2004 WI 18
For Walters: Jenelle L. Glasbrenner, David A. Danz
Issue/Holding:

¶25. We cannot ignore the arguments offered by the State at the trial court level at both the motion to exclude before Judge Race and the motion for reconsideration before Judge Carlson. We are troubled by the district attorney’s arguments that a trial court is free to ignore published decisions of the court of appeals.

State v. Oscar A. Rash, 2003 WI App 32, PFR filed 2/25/03
For Rash: Peter Koneazny, Diana Felsmann, SPD, Milwaukee Appellate

Issue: Whether the restitution order for damage to the victim’s car was supported by sufficient causation, where the defendant abducted the victim for 20-30 minutes, during which time the unattended and unlocked car was broken into by unknown actor(s).

Holding:

¶6. “Before restitution can be ordered”

State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove

Issue/Holding: Ross was convicted of a pattern of racketeering involving securities fraud contrary to Wis. Stat. §§ 551.41(2) and 946.82(2), (3), (4) and 946.83 (WOCCA). This pattern of racketeering, based in fraudulent activities occurring in Wisconsin and contrary to the securities law, also affected investors in other parts of the country. By claiming at various times that the securities he was selling were registered in Wisconsin (which implied disclosure) when they were not,

State v. Mark M. Loutsch, 2003 WI App 16, PFR filed 1/17/03; X-PFR filed 1/31/03
For Loutsch: Charles B. Vetzner

Issue/Holding:

¶12. The distinction between general and special damages as relevant to Wis. Stat. § 973.20(5)(a) is well established. “General damages” under this statute are those that compensate the victim for damages such as pain and suffering, anguish or humiliation, while “special damages”

State v. Mark M. Loutsch, 2003 WI App 16, PFR filed 1/17/03; X-PFR filed 1/31/03
For Loutsch: Charles B. Vetzner

Issue/Holding:

¶25. Read together, these sections plainly contemplate that the court order at sentencing an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence-in this case, during the term of imprisonment and subsequent extended supervision and probation.

State v. Timothy M. Ziebart, 2003 WI App 258
For Ziebart: Robert R. Henak

Issue/Holding:

¶26. Where the trial court incorrectly instructs the jury, this court must set aside the verdict unless that error was harmless; that is to say, unless there is no reasonable possibility that the error contributed to the conviction. State v. Neumann, 179 Wis. 2d 687, 703, 508 N.W.2d 54 (Ct.

State v. Rodney K. Stenseth, 2003 WI App 198, PFR filed 9/2/03
For Stenseth: Robert A. Ferg

Issue: Whether violation of the defendant’s right to be present at resentencing (occasioned by the original sentence exceeding the maximum allowable period of confinement) is subject to harmless error analysis.

Holding:

¶16. Wisconsin Stat. § 971.04(1)(g) provides that a defendant shall be present “[a]t the pronouncement of judgment and the imposition of sentence.”

State v. Joshua L. Howland, 2003 WI App 104
For Howland: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding:

¶32. We must also note that the inappropriate nature of the contact between the district attorney’s office and the Division of Community Corrections borders on ex parte communications. Our supreme court has acknowledged the importance of the PSI to the sentencing process. State v.

State v. Randy D. Stafford, 2003 WI App 138
For Stafford: Robert G. LeBell

Issue/Holding: A mental health professional whose assessment of the sexual assault defendant was incorporated into the presentence report and cited at length by the sentencing judge and who had, unbeknownst to the defense, treated the victim for the six months prior to the assessment, had a conflict of interest that amounted to a new factor requiring resentencing.