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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
§ 940.32(2m)(b), Stalking – “Course of Conduct” Acts: Timing, Admissibility
State v. Janet A. Conner, 2009 WI APP 143, PFR filed 9/28/09 For Conner: J. Steven House Issue/Holding: ¶19 We conclude that the seven year time restriction specified in Wis. Stat. § 940.32(2m)(b) requires that only the final act charged as part of a course of conduct occur within seven years of the previous conviction, […]
§§ 940.32(2) & (2m)(a), Stalking, Having Prior Conviction for Violence – Prior Conviction Is Element, not Penalty Enhancer
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42 For Warbelton: Paul G. Lazotte, SPD, Madison Appellate Issue/Holding: Prior conviction for a violent crime is element, not penalty enhancer, of stalking, §§ 940.32(2) & (2m)(a): ¶30 First, sub. (2m)(a) designates a list of specific crimes that elevate a simple stalking offense […]
Expectation of Privacy – Generally
State v. Elliot B. Russ, Sr., 2009 WI App 68 For Russ: Barry S. Buckspan Issue/Holding: ¶11 The first issue turns on whether Russ had a reasonable expectation of privacy in the affidavits that he left on the bench. See Roberts, 196 Wis. 2d at 453, 538 N.W.2d at 828 (“[B]efore a defendant can invoke the protections of […]
Exigency – Destruction of Evidence (Drugs) – Entry of Residence – Following Controlled Buy
State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09 For Phillips: Michael J. Backes Issue/Holding: Warrantless entry of residence, following controlled buy within it, was justified by the threat of destruction of evidence, given that, “after seeing the police outside the residence, Phillips retreated into the residence and shut the door after the police […]
Exigency – “Protective Sweep” as Incident of Destruction of Evidence
State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09 For Lee: Robert E. Haney Issue/Holding: Police investigating complaint of drug dealing were entitled to enter apartment and conduct “protective sweep” when they saw, through the open front door, clear evidence of drugs: ¶13 The officers who presented themselves at Lee’s front door were investigating […]
Certiorari – Inmate Complaint – “Misdirected” Writ, Lack of Jurisdiction
State ex rel. David C. Myers v. Smith, 2009 WI App 49 Pro se Issue/Holding: Writ of certiorari “misdirected” to wrong respondent (in this instance, review of inmate complaint, improperly naming as respondent institution warden rather than DOC Secretary or designee) must be dismissed: ¶10 We begin by observing that certiorari “is available only for […]
Certiorari – Inmate Complaint – Limitation on Discovery
State ex rel. David C. Myers v. Smith, 2009 WI App 49 Pro se Issue/Holding: Inmate may not utilize discovery to bypass security-based restrictions on access to banned material such as pornography: ¶16 Inmates must not be allowed to evade security restrictions by simply filing suit or petitioning for writ of certiorari and obtaining prohibited […]
Attempted Theft from Person, § 943.20(3)(e) – Sufficiency of Evidence
State v. Cleveland R. Tidwell, 2009 WI App 153, PFR filed 10/9/09 For Cleveland: Jeremy C. Perri, SPD, Milwaukee Appellate Issue/Holding: Evidence held sufficient to sustain conviction for attempted theft from person, where Tidwell demanded money from a restaurant clerk, hit his fist on cash register and fax machine next to cash register, and tried […]
Double Jeopardy – Multiplicity: Bail Jumping – Single Bond, Same Condition but Different Cases
State v. Dana Eaglefeathers, 2009 WI App 2, PFR filed 1/9/09 For Eaglefeathers: Patricia A. Fitzgerald Issue/Holding: Violation of the same condition in a single bond applicable to two different cases (failure to appear at both preliminary hearings scheduled for the same time and court) supports multiple bail jumping charges: ¶8 The parties do not dispute that […]
Obstructing, § 946.41 – “Incomplete” Instruction, “Lawful Authority” – Harmless Error
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion For Ferguson: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: Where it was clear not only that Ferguson obstructed the police outsideher apartment but also that the jury so found, arguable omission of a “complete” instruction on whether the police acted with lawful authority in entering her apartment was […]
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.