On Point: Published 2004

State v. Thomas H. Bush (II), 2004 WI App 193, reversed in part, 2005 WI 103
For Bush: Robert G. LeBell

Issue: Whether Bush, on appeal from denial of petition for release from SVP commitment, § 980.09(2), is procedurally barred from challenging the constitutionality of his underlying commitment because he could have raised such challenge in a prior appeal.

Holding:

¶13.

State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130

Issue/Holding:

 ¶7. Generally, on an appeal of the circuit court’s order granting or denying relief in a certiorari action, we review the underlying decision of the administrative agency, not that of the circuit court. See State ex rel. Sprewell v. McCaughtry, 226 Wis. 2d 389, 393, 595 N.W.2d 39 (Ct.

State ex rel. David C. Myers v. Swenson, 2004 WI App 224, PFR filed 11/24/04
For Myers: Christopher T. Sundberg; Bruce D. Huibregtse

Issue/Holding:

¶6. A motion to quash a writ of certiorari is akin to a motion to dismiss. Fee v. Board of Review, 2003 WI App 17, ¶7, 259 Wis. 2d 868, 657 N.W.2d 112. Both a motion to quash and a motion to dismiss test the legal sufficiency of the facts alleged in the complaint.

State ex rel. Raymond Booker v. Schwarz, 2004 WI App 50
For Booker: John Pray, Legal Assistance Program, UW Law School

Issue/Holding:

¶10 We review the decision of the agency, not that of the circuit court. State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (Ct. App. 1997), aff’d, 219 Wis.

State v. Walter Leutenegger, 2004 WI App 127
For Leutenegger: Bill Ginsberg

Issue/Holding: “[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court,” ¶5, quoting Jones v. Dane County, 195 Wis. 2d 892, 918 n.8, 537 N.W.2d 74 (Ct. App. 1995). And, ¶10, utilizing same quote: “Therefore, we applyRichter because it is the most recent supreme court decision on the topic.”

But it’s not quite that simple.

State v. Lucian Agnello II, 2004 WI App 2, (AG’s) PFR filed 1/8/04, on appeal after remand, 2003 WI 44; prior history: State v. Agnello I, 226 Wis.2d 164, 593 N.W.2d 427 (1999)
For Agnello: Jerome F. Buting, Pamela Moorshead

Issue: Whether the defendant is entitled to withdraw his guilty plea and to have a trial under the supreme court’s mandate in his prior appeal,

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether attorney fees, incurred by the victims in seeking damages under the contract underlying this theft by contractor case, are subject to restitution.

Holding:

¶29. Longmire contends the trial court erred because the “American Rule” requires litigants in a civil action to bear their own litigation costs,

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether expenditures by victims to correct shoddy work done by defendant in theft by contractor case may be subject to restitution.

Holding:

¶23. We conclude that these costs, incurred by the homeowners and admittedly arising out of their dealings with Longmire, are not recoverable as a separate item of restitution under Wis.

State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler

Issue/Holding: ¶5, n. 2: “Technically, Stenzel is seeking a modification of a sentence imposed by an erroneous exercise of discretion; resentencing is only available if the initial sentence is vacated because it was illegally imposed. State v. Carter, 208 Wis. 2d 142, 146-47, 560 N.W.2d 256 (1997).”

Well,

State v. Brandon L. Mason, 2004 WI App 176
For Dawson: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: Where the term of initial confinement exceeds the permissible maximum, based on the rule that this term may not exceed 75% of the total sentence, the error is not harmless even though the term is less than the maximum that could have been imposed had the maximum sentence been given;