On Point blog, page 59 of 133
Appellate Jurisdiction – Final Order
Admiral Insurance Company v. Paper Converting Machine Co., 2012 WI 30; case activity
¶3 If we conclude that there is any ambiguity in an order or judgment about whether it disposes of the entire matter in litigation as to one or more of the parties, we will construe the ambiguity so as to preserve the right to appeal. …
…
¶26 We recently addressed what it means for a judgment or order to be final in Wambolt v.
State v. James G. Brereton, 2011 WI App 127, rev. granted 3/15/12
court of appeals decision; for Brereton: Matthew S. Pinix; case activity; prior post
Search & Seizure – GPS Device – Warrant
Issues (Composed by On Point):
Whether the police illegally seized Brereton’s car, so as to taint a subsequently issued warrant for installation of a GPS tracking device on it; or, whether tracking was unreasonable under U.S. v. Jones,
State v. Gerald D. Taylor, 2011AP1030-CR, rev. granted 3/15/12
court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; prior post
Issue (from Certification):
Whether understating the potential penalty during a plea colloquy can properly be deemed harmless error, and if so, where in the analytical framework of Bangert such a determination should be made.
The guilty plea court misinformed Taylor that the maximum he faced was 6,
Sex Offender Registration § 301.45 – Homeless Registrant
State v. William Dinkins, Sr., 2012 WI 24, affirming 2010 WI App 163; for Dinkins: Steven D. Phillips, SPD, Madison Appellate; case activity; note: the court affirms the mandate (reversal of conviction and dismissal of charge), but “upon a different rationale,” ¶63; the net effect is, “affirmed, as modified“
Although homelessness is not in and of itself a defense to prosecution for failing to register as a sex offender,
“Anders” No-Merit Procedure (§ 809.32)
State v. Jeffery G. Sutton, 2012 WI 23, reversing summary order of court of appeals; for Sutton: Kaitlin A. Lamb, Colleen Ball, SPD, Milwaukee Appellate; for amicus, WACDL: Robert R. Henak; case activity
Although presented with an unpreserved but seemingly meritorious issue (defective jury-waiver colloquy) on § 809.32 no-merit review, the court of appeals nonetheless accepted counsel’s no-merit report, thereby affirming Sutton’s conviction, and instructed him to seek relief pursuant to § 974.06 even though he was no longer in custody and the remedy was thus illusory.
Judicial Estoppel – Generally
State v. Basil E. Ryan, Jr., 2012 WI 16, reversing 2011 WI App 21; case activity
¶32 We begin by addressing the circuit court’s application of the equitable doctrine of judicial estoppel. Judicial estoppel is intended “to protect against a litigant playing ‘fast and loose with the courts’ by asserting inconsistent positions” in different legal proceedings. State v. Petty,
State v. Brian K. Avery, 2011 WI App 148, rev. granted 2/23/12
on review of published opinion; for Avery: Keith A. Findley, Tricia J. Bushnell; case activity; prior post
Newly Discovered Evidence / Interest of Justice – New Forensic Method
Issues (composed by On Point):
1. Whether new scientific photogrammetric analyses by expert witnesses, indicating that the suspect in video surveillance was shorter than Avery, entitles him to a new trial on the ground of newly discovered evidence.
Probation – Length of Term, Authority to Reduce
State v. Carl L. Dowdy, 2012 WI 12, affirming 2010 WI App 58; for Dowdy: Bryan J. Cahill; Amicus: Dustin Haskell (SPD), Robert Henak (WACDL); case activity
¶4 We conclude that Wis. Stat. § 973.09(3)(a) does not grant a circuit court authority to reduce the length of probation. Rather, the plain language of § 973.09(3)(a) grants a circuit court authority only to “extend probation for a stated period”
Juror Bias / Disqualification – Waiver of Issue: Use of Peremptory to Remove Juror
State v. Sharon A. Sellhausen, 2012 WI 5, reversing 2010 WI App 175; for Sellhausen: Byron C. Lichstein; case activity
The trial judge’s daughter-in-law was part of the jury pool; Sellhausen didn’t seek her removal for cause, but used a peremptory to strike her, which rendered harmless any possible error in the trial judge sua sponte failing to remove the juror for cause.
Fleeing, Elements: “Willful or Wanton Disregard”; Evidence – Character Trait of “Victim,” § 904.04(1)(b)
State v. Daniel H. Hanson, 2012 WI 4, affirming 2010 WI App 146; for Hanson: Robert R. Henak, Chad Lanning; case activity
Fleeing, § 346.04(3) – Elements: “Willful or Wanton Disregard”
Fleeing does not require “an evil or malicious state of mind” when disregarding an officer’s signal:
¶22 In Wis. Stat. § 346.04(3), “willful” modifies “disregard.” In that context,