On Point blog, page 108 of 133
§ 941.23, Carrying concealed weapon – As-AppliedConstitutionality, in Light of Wis. Const. Art. I, § 25
State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate
Issue: Whether § 941.23 is unconstitutional as applied to Cole.
Holding:
¶48. Cole claims that he was carrying the weapons because he had been “the victim of a brutal beating when he was younger and he did not feel safe in the neighborhood.” (Pet’r Br. at 3.) He did not assert that he had the weapons in the car in response to any specific or imminent threat.
§ 948.22, Nonsupport — Modification of Support Payments – Factors: Incarceration
State v. Terry L. Dumler, 2003 WI 62, affirming summary order
For Dumler: Todd G. Smith
Issue/Holding:
¶ 1.… The central issue before this court is whether the circuit court erroneously exercised its discretion in refusing to reduce Dumler’s child support payments in light of Dumler’s incarceration and resulting change in income. Although we find it appropriate for a court to consider incarceration when reviewing a request for modification,
Hearsay – Against-Interest Statement, § 908.045(4) — Exculpating Defendant
State v. Sherrie S. Tucker, 2003 WI 12, on certification
For Tucker: Paul LaZotte, SPD, Madison Appellate
Issue/Holding:
¶32. At the postconviction hearing, the circuit court upheld its prior ruling that McCray’s statements were not admissible as either statements against penal interest or under the residual exception to the hearsay rule. The circuit court noted that McCray’s statements attempted to exculpate Tucker without inculpating himself.
Constitutional Defenses – Ex Post Facto – Change in Statute of Limitations
State v. Jeffrey B. Haines, 2003 WI 39, 2002 WI App 139
For Haines: Mark A. Huesmann, Sonja Davig Huesmann
Issue/Holding: An extension of the limitation period for prosecuting a crime, before the prior limitation period has expired, doesn’t violate the ex post facto clause of the Wisconsin Constitution.
¶15. In sum, the court of appeals succinctly and correctly reasoned that:
[T]he 1994 amendment to Wis.
Sentencing – Factors: (PAC-Related, District-by-District) Sentencing Guidelines, Validity
State v. Patty E. Jorgensen, 2003 WI 105, affirming unpublished opinion of court of appeals
For Jorgensen: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding1: Sentencing guidelines for specified offenses (namely: §§ 346.63 (1) (b) or 346.63(5) [PAC offenses]) are within the authority granted by § 346.65(2m)(a). ¶¶16-18. However, the guidelines do not apply to an offense under § 346.63(1)(a) (OWI), therefore “it is inappropriate for a circuit court to simply apply the guidelines as the sole basis for its sentence in a § 346.63(1)(a) case.” ¶27.
Wisconsin Constitution – Construction – General
State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate
Issue/Holding: “¶31. In interpreting a constitutional provision, we first turn to the plain meaning of the amendment in context.” The court next examines the legislative history of the amendment, including drafting records of the legislative reference bureau and legislative council staff, ¶36 and id. n. 12. Further “analysis includes an examination of the practices in effect at the time the amendment was passed,
Supervisory Writ — John Doe Proceeding, Review of
State ex rel Unnamed Persons v. State, 2003 WI 30
For Unnamed Persons: Franklyn M. Gimbel, et al.
Issue/Holding:
¶48. On balance, we conclude that Wisconsin Constitution, Article VII, Section 5(3), read together with the language in Wis. Stat. § 808.03(2) and in Wis. Stat. § (Rule) 809.51(1) including “other person or body,” is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding.
Physical Evidence Derived from (Intentional) Miranda Violation
State v. Matthew J. Knapp (I), 2003 WI 121, on certification; vacated and remanded for further consideration in light of United States v. Patane, 542 U. S. ____ (2004), Wisconsin v. Knapp, No. 03-590; Knapp I reaffirmed on remand, State v. Matthew J. Knapp (II),
Motion to Suppress Statement – State’s Burden of Proof, Unsworn Police Reports
State v. Joseph F. Jiles, 2003 WI 66, reversing unpublished decision of court of appeals
For Jiles: Mark S. Rosen
Issue/Holding:
¶35. We think it will be a rare case that the State is able to meet its burden of proof at a Miranda–Goodchild hearing by relying exclusively on an unsworn police report.
¶36.
John Doe Proceeding – Review of, by Supervisory Writ
State ex rel Unnamed Persons v. State, 2003 WI 30
For Unnamed Persons: Franklyn M. Gimbel, et al.
Issue/Holding:
¶48. On balance, we conclude that Wisconsin Constitution, Article VII, Section 5(3), read together with the language in Wis. Stat. § 808.03(2) and in Wis. Stat. § (Rule) 809.51(1) including “other person or body,” is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding.