On Point blog, page 1 of 5
SCOW affirms denial of supervisory writ, seeks to clarify “preferred” appellate procedure to challenge denied substitution request
State ex rel. Antonio S. Davis v. Circuit Court for Dane County, the Honorable Ellen K. Berz and State of Wisconsin, 2024 WI 14, 3/26/24; case activity
A majority of the Wisconsin Supreme Court affirms the court of appeals’ denial of Davis’ petition for a supervisory writ after concluding the the circuit court had no “plain duty” to treat Davis’ request for substitution as timely under Wis. Stat. § 971.20(4). The court also uses the decision to clarify that a petition for a supervisory writ is not the preferred vehicle to seek appellate review of a circuit court’s denial of a request for substitution that was filed after arraignment. Op, ¶11.
Failure to file all “administrative-process documents” dooms petition for writ of certiorari
Artillis Mitchell v. Chris S. Buesgen & Kevin A. Carr, 2022AP1076, 2/22/24, District 4 (recommended for publication); case activity
This case concerns Mitchell’s appeal from the circuit court’s order dismissing his petition for a writ of certiorari. We recognize the case is a bit outside of our normal coverage, but in addition to the fact that D4 has recommended this decision for publication, the case presents an interesting, if somewhat technical, application of law to a factual scenario that is likely of some interest to our readers. The bottom line is that the denial of Mitchell’s petition is affirmed, despite the fact that he indisputably filed proof that he fully exhausted all available administrative remedies, because he failed to file “all documents related to the administrative process.” Op., ¶33-34.
SCOW to decide whether to relax strict application of statutory substitution deadline
State of Wisconsin ex rel. Antonio S. Davis v. Circuit Court for Dane County and Honorable Ellen K. Berz, 2022AP1999-W, PFR granted 03/31/2023; COA decision affirmed, 2024 WI 14, case activity (including briefs, petition for review, and state’s response)
Davis was arrested and charged with two misdemeanors in Dane County. He applied for an attorney through the State Public Defender a day after his arrest, but made his initial appearance before a court commissioner without appointed trial counsel. That same day, Davis’ case was assigned to Judge Ellen K. Berz. Counsel was appointed to represent Davis 65 days later, and after consultation with his newly appointed counsel, Davis filed a request for substitution. Judge Berz denied the request as “untimely.” The supreme court will now review whether the delayed appointment of counsel provides an exception to the strict adherence to Wis. Stat. § 971.20(4)’s deadline to file a request for substitution.
COA denies writ of coram nobis seeking to vacate OWI based on Forrett
State v. Singh, 2021AP1111-CR, 8/18/22, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
Singh challenges his 2005 conviction for OWI, first offense. He first asks for a writ of coram nobis vacating the conviction. Alternatively, he asks that his conviction be vacated or amended under State v. Forrett, 2022 WI 37, 401 Wis. 2d 678, 974 N.W.2d 422, which held that an OWI penalty cannot be increased because of a prior revocation stemming from a refusal to submit a warrantless blood draw.
CoA affirms denial of writ of coram nobis
State v. S.C.M., 2019AP430, 1/25/22, District 3 (1-judge opinion; ineligible for publication); case activity
A petition for writ of coram nobis must show that (1) a court of record contains a factual error that, if known, would have prevented the court from entering judgment, and (2) petitioners has no other remedy at law such as an appeal. See State ex rel. Patel v. State, 2012 WI App 117, ¶13, 344 Wis. 2d 405, 824 N.W.2d 862. These writs are rare. Defendants sometimes seeks them when they are out of custody and cannot bring a §974.06 motion. In this case, “Seth” petitioned one 10 years after the circuit court adjudicated him delinquent and sent him to Lincoln Hills.
Jail’s classification system doesn’t trump judge’s Huber order
State ex rel. Jamie A. Coogan v. Steven R. Michek, Sheriff, Iowa County, 2020 WI App 37; case activity (including briefs)
A jail’s classification system can’t supersede a sentencing judge’s grant of Huber release.
Attorney’s e-filing registration doesn’t eliminate need for personal service under § 801.02(1)
State ex rel. Michael J. Vieth v. John Tate II, 2018AP1525, District 4, 2/13/20 (not recommended for publication); case activity (including briefs)
Lawyers handling petitions for a writ of certiorari to review administrative decisions (or any other extraordinary writs, for that matter) should be aware of this decision. It holds that, under the electronic filing system statutes, the administrative agency’s attorney registering as a user does not relieve a petition of the obligation to personally serve the agency with the document initiating the proceeding.
Innocence project notches win on writ of coram nobis
State v. Sammy Joseph Hadaway, 2018 WI App 59; case activity (including briefs)
Hadaway pleaded guilty to an armed robbery more than 20 years ago. Based, in part, on Hadaway’s testimony, his purported accomplice, Ott, was tried and convicted of first-degree intentional homicide–the victim of the crime was sexually assaulted and murdered.
DOC may collect restitution from inmate even after a sentence has expired
State ex rel. Drazen Markovic v. Jon E. Litscher, 2018 WI App 44; case activity (including briefs)
The Department of Corrections has the authority to take certain funds from an inmate’s account to pay the restitution ordered in a case even though the inmate has finished serving the sentence in that case.
Errors of law can’t be challenged by writ of coram nobis
State v. Aman D. Singh, 2015AP850-CR, District 4, 1/7/16 (one-judge decision; ineligible for publication); case activity
Singh, appealing pro se, seeks to reverse a twelve-year-old OWI-second conviction for which his sentence is long over.