On Point: B. Published opinions

State v. Jerry L. Parker,  2002 WI App 159, PFR filed 5/20/02
For Parker: William Christopher Rose

Issue: Whether the principle of State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987) (missing transcript that can’t be re-created requires new trial) applies to posttrial destruction of potentially exculpatory evidence (taped drug transaction) given to the defense before trial but never introduced into the record.

State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding: The trial court erred in granting a motion to modify sentence without either seeking the state’s response or holding a hearing. Procedure on motion to modify sentence is similar to that for a post-conviction motion under § 974.06(3) — if the motion is obviously non-meritorious, the trial court should deny it outright;

State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02
For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate

Issue: Whether defendant waived an objection to the violation of an in limine order, by waiting until a recess to enter an objection.

Holding:

¶17. When the State violated the stipulation and the court’s order at trial, English- Lancaster did not immediately object. Instead,

State v. Paul Venema, 2002 WI App 202
For Venema: Randall R. Garczynski

Issue/Holding: Failure to object to portions of closing argument didn’t waive right to challenge them on appeal, where defendant obtained a “definitive pretrial ruling” which “served to preserve (his) position for appeal.” ¶25 n. 9.

State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth

Issue/Holding: Where restitution was for counseling expenses, Johnson failed to show good cause for discovery of her counseling records. ¶¶28-30.

State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth

Issue/Holding: Because record is clear that trial court ordered restitution, court of appeals refuses to recharacterize (and uphold) order as condition of probation:

¶25                        As a final argument, the State contends that even if W.L.’s wages are not recoverable under WIS. STAT. § 973.20, the circuit court could have properly required repayment of the lost wages as a condition of probation under WIS.

State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth

Issue/Holding: Wages lost by a stepparent’s accompanying the victim to court aren’t subject to restitution; lost wages are limited to those persons identified in § 973.20(5)(b). ¶¶22-23.

Issue/Holding: A stepparent is not victim for § 973.20(1r) restitution purposes, ¶¶17-19. (However, a stepparent may qualify as an “other person,” under § 973.20(5)(d),

State v. James N. Storlie, 2002 WI App 163
For Storlie: William E. Schmaal, SPD, Madison Appellate

Issue: Whether the destruction of “stop sticks” caused by defendant’s flight from the police is properly subject to a restitution order.

Holding:

¶10…. (T)he government is entitled to restitution for losses incurred when it is a victim as a direct result of criminal conduct,

State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky

Issue/Holding:

¶27 … Here, Grindemann did object to the prosecutor’s mention of uncharged offenses at sentencing, but the objection was based on the lack of evidence ‘properly before the court,’ not on any claim that the State was violating either the terms or the ‘spirit’ of the plea agreement.

State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/16/02
For Lasky: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: Claim of “statutory double jeopardy,” § 939.71, not barred by guilty plea waiver rule; court therefore may consider merits of whether elements of federal bank robbery conviction are the same, and therefore preclude prosecution of, state armed robbery.