On Point blog, page 92 of 214
Conspiracy – § 939.31, Elements – Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶18 Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x).[8] Section 939.31 provides:
…. whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may,
Conspiracy — § 939.31 – Sufficiency of Evidence – Agreement
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶36 Routon, as noted above, argues that the single sale to Agent Smith is, as a matter of law, insufficient evidence of an agreement. However, in the cases on which he relies, there was no evidence, as there is here,
Forfeiture – Dismissal with Prejudice, Failure to Hold Timely Hearing on Petition, § 961.555(2)
State v. Lamont D. Powell, 2007 WI App 127
For Powell: Nicholas C. Zales
Issue/Holding:
¶3 The sixty-day limit in Wis. Stat. § 961.555(2)(b) is mandatory and a forfeiture petition must be dismissed unless the requisite hearing is held within the sixty-day period because a person may not be deprived of his or her property “for an indefinite time” without a prompt judicial assessment of whether forfeiture is justified.
Reasonable Suspicion – Basis – Unusual Nervousness and Behavior, as Ground to Extend Routine Traffic Stop
State v. Philip R. Bons, 2007 WI App 124, PFR filed 4/24/07
For Bons: Vladimir M. Gorokhovsky
Issue: Whether a concededly proper traffic stop (for speeding) was extended without sufficient cause when the officer, after issuing the ticket and returning the license, asked to search the car.
Holding:
¶15 We conclude that Ramstack could have formed a reasonable suspicion that Bons was engaged in illegal activity,
Reasonable Suspicion – Basis – Traffic Stop – Vehicle’s Owner Known to Have Revoked License
State v. Frank C. Newer, 2007 WI App 236, PFR filed 11/8/07; prior history: Certification, 8/8/07, denied, 9/10/07
For Newer: Francis R. Lettenberger
Issue/Holding: The police have reasonable suspicion to stop a vehicle whose owner’s DL is known to have been revoked, given no reason to think someone other than the owner is behind the wheel:
¶2 We now reverse the circuit court’s suppression of the evidence and remand for further proceedings.
Reasonable Suspicion – Basis – Traffic Stop – Pretext
State v. Frank C. Newer, 2007 WI App 236, PFR filed 11/8/07; prior history: Certification, 8/8/07, denied, 9/10/07
For Newer: Francis R. Lettenberger
Issue/Holding: ¶4, n. 2.
The circuit court also refused to consider the alternative grounds of the observed speeding violation because the officer “wasn’t using that as a basis for the stop.” We note that the officer’s subjective motivation for making a stop is not the issue;
Commencing Appeal – Effect of Notice of Appeal to Non-Final Order – Construing as Petition for Leave to Appeal
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: Dismissal of an appeal as having been directed to a non-final order doesn’t in and of itself bar the court of appeals from deciding to grant leave to appeal, ¶7 n. 2:
In its jurisdictional memoranda, the State asks us to construe its notice of appeal as a petition for leave to appeal in the event that we decline jurisdiction over the appeal.
OWI – State’s Appeal: Collateral Attack on Prior OWI Conviction – Non-Final Order, Permission to Appeal Required
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2 A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.
OWI – Appellate Procedure: Finality of Order, State’s Appeal: Collateral Attack on Prior OWI Conviction
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2 A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.
Warrantless Entry of Residence – Exigency — Destruction of Evidence (Drugs)
State v. Dwight M. Sanders, 2007 WI App 174, affirmed on different ground, 2008 WI 85
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶32 In both Hughes and Garrett, the police officers actually detected the presence of drugs within the residence before they entered without a warrant. In Hughes, the officers smelled the “unmistakable odor of marijuana coming from [the defendant’s] apartment.” Hughes,