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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.

Commencing Appeal – Effect of Notice of Appeal to Non-Final Order – Construing as Petition for Leave to Appeal

State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi

Issue/Holding: Dismissal of an appeal as having been directed to a non-final order doesn’t in and of itself bar the court of appeals from deciding to grant leave to appeal, ¶7 n. 2:

In its jurisdictional memoranda, the State asks us to construe its notice of appeal as a petition for leave to appeal in the event that we decline jurisdiction over the appeal. 

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OWI – State’s Appeal: Collateral Attack on Prior OWI Conviction – Non-Final Order, Permission to Appeal Required

State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi

Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:

¶2      A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.  

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Frisk of Automobile – Reasonable Suspicion: Single Factor – “Furtive” Movement

State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding:

¶34      Turning to the present case, the State contends that Johnson’s movement in the interior of the car was a sufficiently compelling factor to justify Stillman’s protective search of Johnson’s car. The State asserts that the court of appeals improperly concluded this single factor,

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Reasonable Suspicion — Stop, Duration, Routine Traffic Violation

State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding:

¶45      Another factor weighs strongly against the reasonableness of the protective search in this case. Before Johnson was asked to exit the vehicle and submit to a pat down, he gave Stillman paperwork showing that his vehicle had passed an emissions test recently,

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§ 940.09(2), Defense to Homicide by Intoxicated Use: Death Would Have Occurred Anyway – Admissibility of Evidence of Deceased’s Prior Conduct as Relevant to Intervening Cause

State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen

Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father’s vehicle and,

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Expectation of Privacy – Automobile: Closed Container

State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶32 Bruski argues that he had a reasonable expectation of privacy in his travel case, even if he did not have a reasonable expectation of privacy in Ms. Smith’s vehicle. The question of whether an individual may have a reasonable expectation of privacy in personal property found inside a vehicle that he or she does not have a reasonable expectation of privacy in has not been addressed by the United States Supreme Court.

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OWI – Appellate Procedure: Finality of Order, State’s Appeal: Collateral Attack on Prior OWI Conviction

State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi

Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:

¶2      A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel. 

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Warrantless Entry of Residence – Exigency — Destruction of Evidence (Drugs)

State v. Dwight M. Sanders, 2007 WI App 174, affirmed on different ground, 2008 WI 85
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding:

¶32 In both Hughes and Garrett, the police officers actually detected the presence of drugs within the residence before they entered without a warrant. In Hughes, the officers smelled the “unmistakable odor of marijuana coming from [the defendant’s] apartment.” Hughes,

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§ 943.20(1)(d), Theft by Fraud – Civil Tort Law, as Aid to Construction

State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger

Issue/Holding:

¶17   Wisconsin Stat. § 943.20(1)(d) prohibits a type of fraud, which is addressed by both criminal and civil tort law. See State v. Timblin, 2002 WI App 304, ¶31, 259 Wis. 2d 299, 657 N.W.2d 89. While there are no common law crimes, this court has consulted civil tort law as an aid to interpreting the criminal fraud statutes.

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Theft by Fraud, § 943.20(1)(d) – Element of Misrepresentation – Satisfied by Failure to Discharge Duty to Disclose

State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger

Issue/Holding:

¶18   A representation can be acts or conduct. See Stecher v. State, 168 Wis. 183, 186, 169 N.W. 287 (1918). In Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, 283 Wis. 2d 555, 699 N.W.2d 205, our supreme court laid out the circumstances where a failure to disclose can constitute a representation.

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