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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.
Harmless Error: Relationship to Plain Error Analysis
State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision For Jorgensen: Martha K. Askins, SPD, Madison Appellate Issue/Holding: ¶21 Wisconsin Stat. § 901.03(4) (2003-04) recognizes the plain error doctrine. [3] The plain error doctrine allows appellate courts to review errors that were otherwise waived by a party’s failure to object. State v. Mayo, 2007 WI […]
Review — Reconfinement Sentence (After Revocation of Extended Supervision), Imposed by Different Judge – Review of Original Sentencing Transcript not Absolute Necessity
State v. Clayborn L. Walker, 2008 WI 34, reversing 2007 WI App 142 For Walker: Amelia L. Bizzaro Issue: Whether the judge is required, at a TIS reconfinement hearing, to have read the original sentencing transcript. Holding: ¶3 We agree with the State and conclude that State v. Gee [3] misinterpreted our decision in Brown. We conclude that a circuit court is not […]
Mootness – Reconfinement Proceeding
State v. Clayborn L. Walker, 2008 WI 34, reversing 2007 WI App 142 For Walker: Amelia L. Bizzaro Issue/Holding: ¶14 As a preliminary matter, while the issue before the court is moot because Walker has completed his reconfinement term and thus our decision will not affect the underlying controversy, we may at times consider a […]
Confrontation – Certified Bank (“Business”) Records – Nontestimonial
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208 For Doss: Robert R. Henak Issue: Whether the authenticating affidavit of a bank record was “testimonial” within the Confrontation Clause. Holding: ¶45 The parties do not dispute that the circuit court correctly described Crawford and Manuel as identifying business records as nontestimonial, […]
OWI – Compliance with § 343.395(4)
Waukesha County v. Eric D. Smith, 2008 WI 23, affirming unpublished decision For Smith: Kirk B. Obear Issue/Holding: By reading the required statutory information verbatim, the officer fully complied with § 343.305(4); he did not err by failing to inform the driver that he might incur penalties different from those in Wisconsin relative to the state that issued […]
Enhancers — § 939.632, School Zone — Constitutionality
State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29 For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner Issue/Holding: ¶81 We conclude that the school zone penalty enhancer is not unconstitutional as applied to Quintana. The legislature has sought to increase the penalty for those who commit violent crimes within 1,000 […]
Enhancer – Apprendi Right to Jury Trial & 5-Year Limitation Period
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116 For LaCount: T. Christopher Kelly Issue: Whether, on a § 939.62(2) “prior-conviction” penalty enhancer, the defendant is entitled to jury resolution that the conviction was in fact within 5 years of commission of the present offense. Holding: ¶52 … (W)hen Shepard and Apprendi are read together, a trial court judge, rather than […]
Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) — “Oral Communications” — Reasonable Expectation of Privacy Embedded in Definition
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate Issue: Whether tape-recorded statements were “oral communication” as defined in Wis. Stat. § 968.27(12). Holding: ¶16 The legislative history of Title III indicates that Congress intended the definition of “oral communication” in Title III, which reads nearly identically to the definition […]
§ 940.25(1)(a), Injury by Intoxicated Use — No Duty to Clarify Meaning of “Materially Impaired” Element Upon Jury Request
State v. Jonathan J. Hubbard, 2008 WI 92, reversing 2007 WI App 240 For Hubbard: Steven W. Zaleski Issue: Whether, upon jury request for clarification of “materially impaired” under the instructions for injury by intoxicated use of a vehicle, § 940.25(1)(a), the trial court properly responded that the should “give all words not otherwise defined […]
§§ 779.02(5), 943.20(1)(b), Theft by Contractor – Elements – Claims Against Money in Trust Fund Must Be Paid Proportionately
State v. Angela A. Keyes / Matthew E. Keyes, 2008 WI 54, affirming in part and reversing in part, 2007 WI App 163 For both Keyes: Michael J. Devanie Issue/Holding1: ¶21 The Keyes were charged with theft by contractor under Wis. Stat. § 779.02(5), part of Wisconsin’s construction lien law. … The statute prohibits the […]
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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.