On Point blog, page 2 of 4
Attempt, § 939.32 — Conspiracy, § 939.31 — Multiplicity
State v. Melvin L. Moffett and Jerrell I. Denson, 2000 WI 130, 239 Wis. 2d 629, 619 N.W.2d 918, affirming State v. Moffett/Denson, 2000 WI App 67, 233 Wis. 2d 628, 608 N.W.2d 733
For Moffett: Patrick J. Stangl; for Denson: Joseph L. Sommers
Issue:
¶2 The parties present the following question to this court: May the State charge the defendants with two crimes,
Expectation of Privacy — Curtilage — Test — Open Fields
State v. Thomas G. Martwick, 2000 WI 5, 231 Wis.2d 801, 604 N.W.2d 552, reversing unpublished decision
For Martwick: Robert P. Rusch
Issue: Whether plants found on Martwick’s property were within his curtilage, and therefore subject to the warrant requirement, or in “open fields.”
Holding: The plants were in open fields, outside the curtilage, and therefore could be seized without a warrant.
The sheriff thought Martwick was growing marijuana on his property,
Exigency – Destruction of Evidence (Drugs) – Entry of Residence – Odor of Burning Marijuana
State v. Vanessa D. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, reversing unpublished decision, cert. denied, __ U.S. __ (2001).For Hughes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate.
Issue1: Whether “the combination of the strong odor of marijuana coming from the apartment, and the knowledge on the part of the occupants that the police are standing outside, amount to exigent circumstances justifying the warrantless entry and subsequent search”.
First Amendment – Scienter – Exposure to Harmful Materials via Internet, § 948.11
State v. Lane R. Weidner, 2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684, on certification
For Weidner: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether § 948.11(2) is unconstitutional.
Holding:
¶43 In sum, we determine that Wis. Stat. § 948.11(2) is unconstitutional in the context of the internet and other situations that do not involve face-to-face contact. Because the statute does not require the State to prove a defendant’s knowledge of the victim’s age when disseminating materials deemed harmful to children,
Warrantless Entry of Residence – Exigency — In General
State v. Vanessa D. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, reversing unpublished decision, cert. denied, __ U.S. __ (2001)
For Hughes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate.
Issue/Holding:
¶25 In Smith, we recognized four circumstances which, when measured against the time needed to obtain a warrant, constitute the exigent circumstances required for a warrantless entry.
Exigency — Automobile Exception to Warrant Requirement
State v. Robert J. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W.2d 568, affirming State v. Pallone, 228 Wis. 2d 272, 596 N.W.2d 882
For Pallone: Steven J. Watson
Issue: Whether the search of a vehicle passenger’s duffel bag, following the driver’s arrest for the forfeiture offense of having open intoxicants, was proper.
Holding: The search was justified as both incident to arrest and as based on probable cause.
Guilty Pleas – Factual Basis — Personal Assent by Defendant not Necessary
State v. Terry Thomas, 2000 WI 13, 232 Wis. 2d 714, 605 N.W.2d 836, affirming unpublished decision
For Thomas: Jeffrey W. Jensen
Issue: Whether a guilty plea defendant must personally assent to the plea’s factual basis.
Holding:
¶18 This case requires us to determine to what extent a defendant must admit the facts of a crime charged in order to accept the factual basis underlying a guilty plea.
Sentence Credit – Read-in
State v. Warrick D. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, on certification
For Floyd: David D. Leeper
Issue: Whether a defendant is entitled to sentence credit under Wis. Stat. § 973.155(1) for time spent in custody on a charge that is dismissed and read-in at sentencing.
Holding: Pre-trial confinement on a charge dismissed and read in at sentencing is related to the sentenced offense and therefore qualifies for credit:
¶31 In limiting the statute’s scope,
Double Jeopardy – Multiplicity: Attempted Child Sexual Exploitation and Child Enticement
State v. Gabriel Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, affirming State v. DeRango 229 Wis. 2d 1, 599 N.W.2d 27
For Derango: Robert G. LeBell
Issue: Whether conviction for both attempted child sexual exploitation and child enticement as a result of a single act is multiplicitous.
Holding: The two offenses are elementally distinct and therefore aren’t the “same”
Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – increased charge following hung jury
State v. Hayes Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, reversing State v. Johnson, 223 Wis. 2d 85, 588 N.W.2d 330
For Johnson: Russell D. Bohach
Issue1: Whether a presumption of prosecutorial vindictiveness arises from an increase in the charge following grant of mistrial due to hung jury.
Holding: No presumption of prosecutorial vindictiveness applies to an increase in charges following mistrial due to hung jury.