On Point blog, page 14 of 22
Statute of Limitations: Attempted first-Degree Intentional Homicide
State v. Rodney A. Larson, 2011 WI App 106 (recommended for publication); for Larson: Chris Gramstrup; case activity
Prosecution for attempt rather than completed crime, §939.32, comes within the general limitation period in § 939.74(1). Therefore, although prosecution for homicide may be commenced at any time, § 939.74(2)(a), Larson’s prosecution for attempted first-degree intentional homicide had to be commenced within 6 years, and must be dismissed as untimely.
Equitable Estoppel: Can’t Bar Prosecution, as Matter of Law
State v. James M. Drown, 2011 WI App 53; for Drown: Shelley Fite, SPD, Madison Appellate; case activity
As a matter of law, equitable estoppel doesn’t bar prosecution of a crime. After pleading guilty to Shawano County charges related to an abduction and assault, Drown was charged in Oconto based on the same incident. The trial court granted a defense motion to dismiss on the ground of equitable estoppel,
OWI – Statute of Limitations
State v. Bradley A. Faber, 2010AP2325-CR , District 2, 3/23/11
court of appeals decision (1-judge, not for publication); for Faber: Susan E. Alesia, SPD, Madison Appellate; case activity
¶1 The State of Wisconsin appeals from an order of the circuit court dismissing the criminal charges against Bradley A. Faber. Faber was issued a pair of citations for operating a motor vehicle while intoxicated (OWI) (First offense) by the City of Delavan in November 2005 and February 2006.
CCW, § 941.23 – Unconstitutional as Applied
State v. Jeremy D. Pinnow, Milwaukee Co. Circ. Ct. No. 2010CM1978, 2/11/11
circuit court decision; case activity
Carrying concealed weapon charge dismissed, under as-applied (state) constitutional challenge, Art. I § 25. Pinnow had a cased, unloaded gun underneath the seat of his car, had himself been the recent victim of an armed robbery, believed with reason he was transporting the gun in a lawful manner, and wasn’t carrying the gun for an unlawful purpose.
Ineffective Assistance of Counsel – Voluntary Intoxication; Ineffective Assistance – State’s Closing Argument
State v. Richard L. Daniels, 2010AP1715-CR, District 3, 2/23/11
court of appeals decision (1-judge, not for publication); for Daniels: John M. Carroll; case activity
Ineffective Assistance of Counsel – Voluntary Intoxication
Voluntary intoxication requires that the defendant establish utter lack of capability to form the requisite intent; because Daniels’ version couldn’t make this showing, counsel’s failure to pursue the defense wasn’t deficient performance.
¶12 It was reasonable for Daniels’ trial counsel to view Daniels’ version of events as inconsistent with a voluntary intoxication defense,
Ineffective Assistance Claim – Necessity of Motion; Entrapment – Child Sex Crime with Computer
State v. Tushar S. Achha, 2009AP1977-CR, District 2, 1/26/11
court of appeals decision (3-judge, not for publication); pro se; case activity; State Resp.
Ineffective Assistance Claim – Necessity of Motion
Failure to preserve a challenge to trial counsel’s performance via postconviction motion waives the issue on appeal, ¶19.
Entrapment – Child Sex Crime with Computer
Challenge to sufficiency of evidence to negate entrapment defense rejected,
Jury Instructions; Ineffective Assistance; Record on Appeal; Self-Defense
State v. Morris L. Harris, 2009AP2833-CR, District 1, 10/13/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Lesser-Included Instruction – Battery
Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,
Battery – Self-Defense – Sufficiency of Evidence; Sanctions – Improper Briefing
State v. Richard Martin Kubat, 2010AP509-CR, District 3, 9/21/10
court of appeals decision (1-judge, not for publication); for Kubat: Marc Grant Kurzman; BiC; Resp.
Battery – Self-Defense – Sufficiency of Evidence
A verbal confrontation between truckers at a truck stop eventuated in Belcher disabling Kubat’s truck and inviting Kubat to get his punk ass out of his cab “and get it.” Kubat accepted the invitation and brought his tire knocker along as his own guest.
Venue: Instruction, Proof; Obstructing: Proof; Instruction: Recently Stolen Property
State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply
Venue – Instruction
¶12 Although venue is not an element of a crime, it nonetheless must be proved beyond a reasonable doubt. State v.
Statute of Limitations – § 939.74(3) – Constitutionality; Pre-Charge Delay; Effective Assistance of Counsel – Investigation
Donald J. McGuire, 2010 WI 91, affirming unpublished decision; for McGuire: Robert R. Henak; BiC; Resp.; Reply
Statute of Limitations – § 939.74(3) – Constitutionality
Under § 939.74(3), the statute of limitations is tolled during “the time during which the actor was not publicly a resident within this state.” McGuire wasn’t a Wisconsin resident, but allegedly committed criminal acts in Wisconsin approximately 36 years before charges were issued.