On Point blog, page 87 of 215
Sentence Credit, § 973.155 – Parolee Released to Another Jurisdiction not Entitled to Credit for Time Served There Against Subsequent Revocation of Wisconsin Parole
State v. Esteban Martinez, 2007 WI App 225
For Martinez: George Limbeck
Issue/Holding: A Wisconsin inmate paroled to serve sentence in another jurisdiction is not entitled to credit for that service against subsequently-revoked Wisconsin parole; State v. Rohl, 160 Wis. 2d 325, 466 N.W.2d 208 (Ct. App. 1991), followed and State v. Kevin Brown, 2006 WI App 41, distinguished:
¶16 Rohl subsequently filed a motion for sentence credit.
Sentence Credit – Extended Supervision Hold
State v. Terrill J. Hintz, 2007 WI App 113, (AG’s) PFR granted 9/11/07
For Hintz: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding: Where an extended supervision hold is based at least in part on arrest on a new offense, § 973.115(1)(a) awards credit for time spent in custody under the hold against the sentence ultimately imposed for conviction of that offense.
Note that it does not matter that a signature bond was issued for the new offense:
¶11 Finally,
Postconviction Motions – Evidentiary Hearing – Claim of Denial of Effective Counsel Due to Client’s Severe Hearing Impairment
State v. Dwight Glen Jones, 2007 WI App 248
For Jones: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶13 Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”),
Waiver of Argument
State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis
Issue/Holding:
¶11 As to the lack of contemporaneous objection, we note that Burton argued strenuously before Warmington testified that his proposed testimony would be irrelevant and prejudicial, and asked that he be subjected to a voir dire outside the jury’s presence. The circuit court denied Burton the requested voir dire [1] and further ruled that Warmington could offer testimony going to the truthfulness of the witnesses and to Burton’s intent.
Waiver of Argument – Failure to Cite Pertinent Authority in Trial Court Doesn’t Alone Amount to Failure to Preserve Issue
State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn
Issue/Holding:
¶13 … The State’s citation for the first time on appeal to Davis and Ross is not a new argument but citation to additional authority. Citation to additional authority and legal analysis on appeal does not constitute “new argument” or advancement of a new theory on appeal.
Waiver: Closing Argument – Failure to Move for Mistrial – Rule Inapplicable Where Objection Denied
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: ¶44, n. 14:
The State also argues that Cockrell waived his right to object on this ground because he did not move for a mistrial. We agree with Cockrell that the case the State relies on for this argument, State v.
Sentence Credit – Credit for Conditional Jail Time (Condition of Probation) Served While “Overlapping” with Concurrent Unrelated Prison Sentence
State v. Martin V. Yanick, Jr., 2007 WI App 30
Pro se
Issue/Holding:
¶1 … We conclude that, when a defendant has served conditional jail time and his or her probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence.
Waiver Rule and Judicial Estoppel: Inapplicable to Mere Acquiescence to Ruling Subsequently Challenged
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: The State’s silent acquiescence to judicial action (sua sponte withdrawal of a guilty plea) didn’t work judicial estoppel bar to mounting subsequent challenge to that ruling, ¶14.
Judicial Estoppel – Objection to PSI
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding:
¶6 Thexton next claims that the circuit court erred in considering the PSI from his prior conviction. On realizing that the PSI in this case had been prepared with extensive reference to the PSI from Thexton’s prior conviction, Thexton’s attorney objected to the circuit court that he could not adequately respond to it because he did not have access to the prior PSI.
Appellate Procedure: Respondent’s Waiver
State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR filed 11/1/07; on remand from supreme court, and affirming, 2006 WI App 163
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶12 Generally, we do not apply waiver against a respondent who is seeking to uphold a trial court ruling. See State v. Holt,