On Point blog, page 5 of 7
Defenses – Privilege, § 939.45 – CCW, § 941.23
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding: Wis. Const. Art. I, § 25 (right to bear arms) does not establish a privilege defense to CCW, § 941.23, under § 939.45.
As to subs. (1): “The existence of random, albeit frequent, criminal conduct in one’s vicinity does not qualify as a ‘natural physical force’ under the law.
OWI – Multiple Enhancers – §§ 346.65(2), 939.62
State v. Richard W. Delaney, 2003 WI 9, affirming unpublished decision
For Delaney: Joseph R. Cincotta
Issue/Holding:
¶1 … Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62 (1999-2000) was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney’s penalty twice for count one of his judgment of conviction.
Enhancer – Pleading – Misstating Date of Prior Convictions by One Day
State v. Robert J. Stynes, 2003 WI 65, reversing unpublished opinion
For Stynes: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether the complaint’s misstatement (by one day) of the date of prior convictions in support of a repeater allegation deprived Stynes of adequate notice, contrary to § 973.12(1) and due process.
Holding:
¶2. We conclude that the complaint provided Stynes with the required notice of the predicate convictions.
Enhancer — § 939.62(2m)(a), Persistent Repeater — Validity – Due Process
State v. Alan R. Radke, 2003 WI 7, affirming 2002 WI App 146
For Radke: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶5. The precise question raised, therefore, is whether the “two strikes” law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on an offender convicted of a second Class B non-fatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A felony homicide offense.
Due Process – Resentencing – Increase in Original Sentence After Appellate Relief
State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90
For Church: James L. Fullin, SPD, Madison Appellate
Issue: Whether an increase in sentence on re-sentencing violated due process,
Due Process – Defendant’s Right to Testify – Personal Waiver Required
State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
For Weed: T. Christopher Kelly
Issue/Holding: A defendant has a “fundamental” constitutional right to testify on his or her own behalf. ¶39.
¶43. Accordingly, in order to determine whether a criminal defendant is waiving his or her right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury.
Wisconsin Constitution – Construction – Scrutiny of Fundamental Right – “Bear Arms”
State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate
Issue/Holding:
¶20. We find that the state constitutional right to bear arms is fundamental. It is indeed a rare occurrence for the state constitution’s Declaration of Rights to be amended. See Monks, The End of Gun Control, 2001 Wis. L. Rev. at 249.
§ 941.23, CCW – As-Applied Constitutionality, in Light of Wis. Const. Art. I, § 25
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding:
¶46. Under its broad police power, Wisconsin may regulate firearms. It may regulate the time, place, and manner in which firearms are possessed and used. The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. See State v.
§ 941.23, CCW – Elements – “Go Armed”
State v. Munir A. Hamdan, 2003 WI 113, on bypass
For Hamdan: Chris J. Trebatoski
Issue/Holding:
¶20. To convict a person of carrying a concealed weapon in violation of Wis. Stat. § 941.23, the State must prove three elements. First, the State must show that a person who is not a peace officer went armed with a dangerous weapon. State v.
Identity Theft, § 943.201 – Obtaining Lower Bail, as Something of “Value”
State v. Pamela L. Peters, 2003 WI 88, on certification
For Peters: Terry W. Rose
Issue/Holding:
¶1. This case is before the court on certification from the court of appeals on a question of first-impression regarding the scope of Wisconsin’s identity theft statute, Wis. Stat. § 943.201(1999-2000). Specifically, the question is whether a defendant who misappropriates another’s identity and uses it during an arrest and in subsequent bail proceedings to obtain lower bail has done so “to obtain credit,