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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.
Notice of Appeal – Notice of Appeal – Contents – Inconsequential Errors
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters
Issue/Holding: Footnote 1:
Patrick Jackson’s notice of appeal says that he is appealing the trial-court order denying his motion for postconviction relief. The notice of appeal does not also indicate that he is also appealing from the judgment of conviction. This defect, however, is not fatal to our review of Jackson’s contention that the judgment was improperly entered against him.
John Doe Proceeding – Review of, by Supervisory Writ
State ex rel. Adrian T. Hipp v. Murray, 2007 WI App 202, (AG’s) PFR filed 8/16/07Pro se
Issue/Holding: Review of a judge’s actions in a John Doe proceeding aren’t subject to direct appeal, but may be reviewed by writ of mandamus:
¶9 The parties agree that we review Judge Murray’s actions in connection with Hipp’s John Doe petition via mandamus. See State of Wisconsin ex rel.
Sentence Credit, § 973.155 – Parolee Released to Another Jurisdiction not Entitled to Credit for Time Served There Against Subsequent Revocation of Wisconsin Parole
State v. Esteban Martinez, 2007 WI App 225
For Martinez: George Limbeck
Issue/Holding: A Wisconsin inmate paroled to serve sentence in another jurisdiction is not entitled to credit for that service against subsequently-revoked Wisconsin parole; State v. Rohl, 160 Wis. 2d 325, 466 N.W.2d 208 (Ct. App. 1991), followed and State v. Kevin Brown, 2006 WI App 41, distinguished:
¶16 Rohl subsequently filed a motion for sentence credit.
Sentence Credit – Extended Supervision Hold
State v. Terrill J. Hintz, 2007 WI App 113, (AG’s) PFR granted 9/11/07
For Hintz: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding: Where an extended supervision hold is based at least in part on arrest on a new offense, § 973.115(1)(a) awards credit for time spent in custody under the hold against the sentence ultimately imposed for conviction of that offense.
Note that it does not matter that a signature bond was issued for the new offense:
¶11 Finally,
Postconviction Motions – Evidentiary Hearing – Claim of Denial of Effective Counsel Due to Client’s Severe Hearing Impairment
State v. Dwight Glen Jones, 2007 WI App 248
For Jones: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶13 Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”),
Waiver of Argument
State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis
Issue/Holding:
¶11 As to the lack of contemporaneous objection, we note that Burton argued strenuously before Warmington testified that his proposed testimony would be irrelevant and prejudicial, and asked that he be subjected to a voir dire outside the jury’s presence. The circuit court denied Burton the requested voir dire [1] and further ruled that Warmington could offer testimony going to the truthfulness of the witnesses and to Burton’s intent.
Waiver of Argument – Failure to Cite Pertinent Authority in Trial Court Doesn’t Alone Amount to Failure to Preserve Issue
State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn
Issue/Holding:
¶13 … The State’s citation for the first time on appeal to Davis and Ross is not a new argument but citation to additional authority. Citation to additional authority and legal analysis on appeal does not constitute “new argument” or advancement of a new theory on appeal.
Waiver: Closing Argument – Failure to Move for Mistrial – Rule Inapplicable Where Objection Denied
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: ¶44, n. 14:
The State also argues that Cockrell waived his right to object on this ground because he did not move for a mistrial. We agree with Cockrell that the case the State relies on for this argument, State v.
Sentence Credit – Credit for Conditional Jail Time (Condition of Probation) Served While “Overlapping” with Concurrent Unrelated Prison Sentence
State v. Martin V. Yanick, Jr., 2007 WI App 30
Pro se
Issue/Holding:
¶1 … We conclude that, when a defendant has served conditional jail time and his or her probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence.
Waiver of Argument: Constitutionality of Statute – Facial Challenge
State v. Scott R. Nelson, 2007 WI App 2, PFR filed 1/22/07
For Nelson: Joseph L. Sommers
Issue/Holding: ¶7 n. 3:
Because Nelson is making facial challenges to the constitutionality of chapter 980, the State’s assertion that Nelson has waived his constitutional arguments lacks merit. See State v. Bush, 2005 WI 103, ¶19,
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