On Point blog, page 85 of 215
Counsel – Right to – Inherent Judicial Authority – Defendant’s Burden of Proof
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding: Defendant did not satisfy his burden of proving indigency, for purposes of invoking inherent judicial authority to appoint counsel, where he failed to submit information regarding attempts to retain counsel as well as information relative to rental property, ¶18.
Counsel – Right to – Defendant Must Cooperate With SPD 1st
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding:
¶27 We emphasize that the procedures set forth in Dean by this court suggest that the inherent power of the circuit court shall be exercised to cover situations where a defendant cooperated with the SPD’s financial analysis, was found not to be indigent under the legislative criteria, but based on the individual circumstances of the case,
Counsel – Right to – Review of SPD Denial of Representation, § 977.06(4)
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding1:
¶11 Kennedy argues that the trial court failed to properly review the SPD’s determination that he did not qualify for the appointment of counsel. In reviewing this issue, the trial court’s findings of fact will not be overturned unless clearly erroneous. See id, 163 Wis. 2d at 511.
SVP Commitments – Competency to Stand Trial – No Due Process Right to Evaluation
State v. Ronald D. Luttrell, 2008 WI App 93
For Luttrell: Steven Prifogle, SPD, Milwaukee Trial
Issue: Whether a ch. 980 SVP respondent is entitled to § 971.14 competency evaluation.
Holding:
¶8 It is true, of course, that both Wis. Stat. § 971.13 and Wis. Stat. § 971.14 once applied to Wis. Stat. ch. 980 commitments, see Smith,
Postconviction Procedure – Discovery – Privileged Material – Insufficient Showing for In-Camera Inspection of Victim’s Toxicology Report
State v. Terry L. Kletzien, Jr., 2008 WI App 182
For Kletzien: James A. Rebholz
Issue/Holding:
¶8 A person convicted of a crime has a due process right to postconviction discovery if “the desired evidence is relevant to an issue of consequence.” State v. Ziebart, 2003 WI App 258, ¶32, 268 Wis. 2d 468, 673 N.W.2d 369. Whether to grant a motion requesting postconviction discovery is committed to the trial court’s discretion.
Mootness: Release of Sought-After Open Record
Portage Daily Register v. Columbia Co. Sh. Dept., 2008 WI App 30
Issue/Holding:
¶8 We will generally not consider issues that are moot on appeal. See Hernandez v. Allen, 2005 WI App 247, ¶10, 288 Wis. 2d 111, 707 N.W.2d 557. However, the present appeal is not moot because our ruling will have the practical effect of determining the Register’s right to recover damages and fees under Wis.
Jury Instructions – Conclusive Presumptions – Misconduct in Public Office, § 946.12(3), Elements of Duty and Intent
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:
¶10 Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element);
Reconfinement – Lack of Authority to Consider CIP or ERP Eligibility
State v. Antonio M. Hall, 2007 WI App 168
For Hall: Michael D. Kaiser
Issue/Holding:
¶17 From our examination of these statutory provisions, we find no ambiguity in the relevant language and conclude that the provisions of Wis. Stat. §§ 973.01(3g), 973.01(3m) and 302.113(9)(am) express a clear intent to restrict the sentencing discretion of the reconfinement court at a reconfinement hearing;
TPR – Sufficiency of Warnings, Prior CHIPS Proceeding
Dane co. DHS v. Dyanne M., 2007 WI App 129, District 4 court of appeals, 3/29/07 (published)
Issue/Holding:
¶19 Dyanne acknowledges that the CHIPS order makes reference to “warnings” and contains the statutory language defining the possible grounds for termination. She also does not dispute that the order contains the conditions that were necessary for Artavia’s return. Dyanne’s argument is limited to an assertion that the order fails to sufficiently connect the warning language to the statutory language.
Competency of TPR Court – Statutory Time Limits–Failure to Comply with § 48.427(1) 10-day Limit for Entering Dispositional Order
Dane Co. DHS v. Dyanne M., 2007 WI App 129, District 4, 3/29/07 (published)
Competency of TPR Court – Statutory Time Limits, Generally
Issue/Holding:1: Generally, compliance with a statutory TPR time limit is mandatory, such that non-compliance results in lost circuit court competency absent an applicable exception, ¶5, citing Dane Co. DHS v. Susan P.S., 2006 WI App 100, ¶63.
Issue/Holding:2: The following is a non-exhaustive list of examples of lost judicial competency for lapse of a time limit without obtaining a proper extension under § 48.315,