On Point: B. Published opinions

State v. Shawn D. Schulpius, 2004 WI App 39, PFR granted 4/20/04
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: Pendency of appeal doesn’t prevent trial court from hearing motion to reconsider, ¶33, n. 8:

Second, Schulpius argues that the trial court did not have jurisdiction to grant on November 29, 2000, the State’s motion for reconsideration because the case was then on appeal.

State v. John S. Provo, 2004 WI App 97, PFR filed 5/7/04
For Provo: William H. Gergen
Issue/Holding:

¶19 … Further, Provo has not made the transcript of the plea hearing a part of the record. Consequently, we must assume that the transcript of that hearing supports the trial court’s finding that Provo’s plea was not coerced. See State v. McAttee,

State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130

Issue/Holding:

 ¶12. Accordingly, we agree with the trial court that the only reasonable reading of Wis. Stat. § 802.06, as applied to certiorari proceedings, is that a party who has unsuccessfully moved to dismiss on other grounds may still seek dismissal grounded on claim preclusion at any time before the court has considered the merits of the petitioner’s claims.

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

Issue/Holding:

¶13. Restitution awarded under Wis. Stat. § 973.20(5)(a) is limited in two ways relevant to our present analysis. First, 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. 

State v. Rex E. Wollenberg, 2004 WI App 20, PFR filed 1/8/04
For Wollenberg: Susan E. Alesia, SPD, Madison Appellate

Issue/Holding:

¶12. Second, assuming this was a DPA, Wollenberg claims the judgment is void because the agreement was never in writing. Wollenberg, however, invited the error he alleges, and we normally will not review invited error. See Atkinson v. Mentzel,

State v. Gregg A. Pfaff, 2004 WI App 31
For Pfaff: Rex Anderegg

Issue/Holding: Failure to request order barring on prosecutor’s conferring with particular witness during break in testimony waived right to challenge such consultation, notwithstanding similar order with respect to different witness, and general sequestration order. ¶¶38-41.

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

Issue: Whether the defendant was entitled to set-off as a defense to restitution for theft by (home improvement) contractor, for work that was paid for by the contractor to a subcontractor.

Holding:

¶18. We conclude that the trial court erroneously exercised its discretion by not allowing any offset whatsoever for Longmire’s undisputed expenditure of a portion of the deposit money in compliance with his contractual obligations.

State v. Thomas H. Bush (II), 2004 WI App 193, reversed in part, 2005 WI 103
For Bush: Robert G. LeBell

Issue: Whether Bush, on appeal from denial of petition for release from SVP commitment, § 980.09(2), is procedurally barred from challenging the constitutionality of his underlying commitment because he could have raised such challenge in a prior appeal.

Holding:

¶13.

State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130

Issue/Holding:

 ¶7. Generally, on an appeal of the circuit court’s order granting or denying relief in a certiorari action, we review the underlying decision of the administrative agency, not that of the circuit court. See State ex rel. Sprewell v. McCaughtry, 226 Wis. 2d 389, 393, 595 N.W.2d 39 (Ct.

State ex rel. David C. Myers v. Swenson, 2004 WI App 224, PFR filed 11/24/04
For Myers: Christopher T. Sundberg; Bruce D. Huibregtse

Issue/Holding:

¶6. A motion to quash a writ of certiorari is akin to a motion to dismiss. Fee v. Board of Review, 2003 WI App 17, ¶7, 259 Wis. 2d 868, 657 N.W.2d 112. Both a motion to quash and a motion to dismiss test the legal sufficiency of the facts alleged in the complaint.