On Point blog, page 6 of 15
Bail: Forfeiture – Discretion
Barbara Melone v. State, 2001 WI App 13, 240 Wis. 2d 451, 623 N.W.2d 179For Melone: Theodore B. Kmiec III
Issue: Whether the trial court properly exercised discretion in declining to set aside an order forfeiting bail, where the court indicated that it “always refuses to return [forfeited] bail money no matter what the circumstance,” ¶1.
Holding: “[T]he statute on bail forfeitures, WIS. STAT. § 969.13(2) (1997-98), requires the court to exercise discretion and consider factors for and against enforcing the forfeiture on a case-by-case basis.
Review – Conflict between oral pronouncement written judgment
State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: “(W)here there is conflict between a trial court’s oral pronouncement and a written judgment, the oral pronouncement controls.” ¶27, citing State v. Perry, 136 Wis. 2d 92, 114, 401 N.W.2d 748 (1987). This rule is applicable even though “the trial court’s oral pronouncement came after, rather than before,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate, Information within Defendant’s Knowledge, but not Imparted to Counsel
State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke
Issue/Holding: “This court will not find counsel deficient for failing to discover information that was available to the defendant but that defendant failed to share with counsel.” ¶24.
Right to Counsel – Inherent Judicial Authority to Appoint – Indigency Determination – Use of Federal Poverty Guidelines
State v. Jose Nieves-Gonzalez, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913
Issue: Whether the trial court incorrectly applied federal poverty guidelines in refusing to appoint counsel at county expense, after the defendant failed to qualify under public defender standards.
Holding: Although federal poverty guidelines are not necessarily conclusive, they should be used “as a proper consideration for court-appointed counsel,” ¶8. Here, the court considered these guidelines in denying the defendant’s request for counsel without a hearing,
Defense of Others – Terminating Interference by Police Officer
State v. John F. Giminski, 2001 WI App 211, PFR filed 9/20/01
For Giminski: Edward J. Hunt
Issue: Whether the defendant was entitled to invoke the privilege of defense of others, § 939.48(4), in using potentially deadly force against police officers who had pulled a gun on his daughter while executing a valid warrant.
Holding:
¶13. (T)he privilege of defense of others, like the privilege of self-defense,
Defenses – Issue Preclusion – “Offensive” Use – Sexually Violent Person Proceeding
State v. Ronald G. Sorenson, 2001 WI App 251, PFR filed
For Sorenson: T. Christopher Kelly
Issue1: Whether issue preclusion (collateral estoppel) may be used “offensively” by the state in a Ch. 980 trial to bar a respondent from presenting evidence that s/he didn’t commit the offense which underlies the qualifying conviction.
Holding:
¶28 Accordingly, we hold that the doctrine of issue preclusion is available for use offensively in Chapter 980 trials.
Defenses – Issue Preclusion
State v. Philip M. Canon, 2001 WI 11, 241 Wis. 2d 164, 622 N.W.2d 270, reversing State v. Canon, 230 Wis. 2d 512, 602 N.W.2d 316 (Ct. App. 1999)
For Canon: Alan D. Eisenberg
¶1 The question presented in this case is whether the doctrine of issue preclusion bars the State from prosecuting a defendant under Wis. Stat. § 946.31(1)(a)(1997-98) for allegedly committing perjury at a criminal trial where the defendant was tried and acquitted on a single issue,
Defenses – Issue Preclusion – Prior Litigation of Ultimate Fact
State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney
Issue: Whether a verdict of acquittal in the defendant’s prior trial estopped the prosecution from retrying the ultimate fact resolved by that acquittal.
Holding:
¶7 ‘Under the collateral estoppel doctrine an issue of ultimate fact that is determined by a valid and full judgment cannot again be litigated between the same parties in a subsequent lawsuit.’ State v.
OWI – Implied Consent: Warrantless Blood-Sample Analysis
State v. Paul J. VanLaarhoven, 2001 WI App 275
For VanLaarhoven: Michele Anne Tjader
Issue: Whether a blood sample, properly obtained under the Implied Consent law, may be analyzed without a warrant.
Holding: The Implied Consent law requires that all who apply for a driver’s license consent not only to provide a sample, but also a chemical analysis of the sample, ¶¶7-8. More broadly: “the examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant.”
OWI – Implied Consent – Blood Draw after Rejecting Request for Breath test
State v. Robert W. Wodenjak, 2001 WI App 216, PFR filed 8/31/01
For Wodenjak: Rex Anderegg
Issue: Whether administration of a blood test, following OWI arrest, was reasonable under the fourth amendment, where the police first rejected the driver’s request for a (less invasive) breath test.
Holding: As long as the standard for warrantless blood draw established by State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993),