On Point: Published 2009

State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe

Issue/Holding: Based largely on State v. Jimmie Davison, 2003 WI 89 (multiple convictions for battery permissible so long as multiple batteries have been charged), the court holds that § 939.66(2) permits conviction for both §§ 940.02(2)(a) and 948.04(4)(a), ¶¶1-21. The offenses are not the same “in law”—each containing at least one element not in the other—and therefore Patterson bears the burden of overcoming a presumption in favor of cumulative punishment.

State v. Charles Lamar, 2009 WI App 133, PFR filed 9/10/09
For Lamar: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding: No presumption of vindictiveness applied to resentencing by a different judge upon guilty pleas re-entered after the original trial court granted Lamar’s postconviction motion to withdraw the initial guilty pleas.

¶17      In Naydihor, our supreme court found that the Pearce presumption did not apply.

State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding:

¶8        Due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969), 

State v. Terion Lamar Robinson, 2009 WI App 97
For Robinson: Beth A. Eisendrath

Issue/Holding: Given the trial court finding that Robinson either lived or stayed at the apartment, the police were authorized to enter to effectuate his arrest under auspices of an arrest warrant:

¶16      In Blanco, the police, who had an arrest warrant for Blanco, entered an apartment where they believed Blanco was staying. 

State v. Jeremy D. Schladweiler, 2009 WI App 177
Pro se

Issue/Holding:

¶9        Commonly referred to as “boot camp,” the CIP is governed by Wis. Stat. § 302.045, which provides that “the [DOC] shall provide a challenge incarceration program for inmates selected to participate” after meeting the eligibility requirements for the program. Sec. 302.045(1). …

¶10      Once the trial court has made an eligibility determination,

State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.

Issue/Holding: A search warrant for seizure of the sorts of items Sveum used or kept in connection with a 1996 stalking conviction established probable cause he was keeping such items in 2003:

¶35      The warrant affidavit stated that the affiant was a detective with twenty-two years of experience who had specialized training in stalking crimes. 

State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.

Issue/Holding: 

¶40      Sveum’s particularity argument is that the many items authorized for seizure were so “non-specific” that the warrant was an invalid general warrant. Police were authorized to seize phone bills, journals, calendars, logs, computers and devices related to computers,

State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.

Issue/Holding: The Wisconsin Electronic Surveillance Control Law excludes from coverage “(a)ny communication from a tracking device,” § 968.27(4)(d); a GPS device is such a “tracking device” and, therefore excluded from WESCL coverage.

State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding:

¶8        The one-party consent exception reads as follows:

(2) It is not unlawful …:….

(b) For a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.

State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate

Issue: Whether, for purposes of authorizing one-party consent under WESCL, “a person acting under color of law” may be a law enforcement officer.

Holding:

¶2        [H]e contends that Wis. Stat. § 968.31(2)(b), commonly referred to as the one-party consent exception,