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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.

§ 941.23, CCW – As-Applied Constitutionality, in Light of Wis. Const. Art. I, § 25 – Tavern Owner, Gun in Car Console

State v. Scott K. Fisher, 2006 WI 44, on certification
For Fisher: Paul B. Millis

Issue: Whether the right to bear arms provision of Wis. Const. Art. I, § 25 countenances prosecution for carrying a concealed weapon in a car’s console by a tavern owner who asserted its necessity for security purposes in that he routinely transported large amounts of cash.

Holding:

¶5        … (W)e conclude that § 941.23 is constitutional as applied to Fisher because his interest in exercising his right to keep and bear arms for purposes of security by carrying a concealed weapon in his vehicle does not substantially outweigh the state’s interest in enforcing § 941.23.…

¶18      … Defendants have the burden of proof.

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Voluntariness of Plea to Grounds for Termination, Procedure for Challenging, Confusion of Parent

Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order

Issue/Holding: The circuit court must undertake a colloquy with the parent tracking § 48.422(7); the parent must know the rights being waived; and on a challenge to the plea the parent must make a prima facie showing that the colloquy was defective and also allege a lack of understanding of the omitted information, ¶¶25-26,

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Juvenile Delinquency — Alternatives to Disposition

State v. Andrew J.K., 2006 WI App 126

For Andrew J.K.: George M. Tauscheck

Issue/Holding: Where a juvenile, in response to a State’s motion to lift a stay on corrections commitment, stipulated to placement in a local program, his subsequent termination from that program subjected him to a lifting of the stay notwithstanding that the program was not a statutorily authorized dispositional alternative:

¶18      Although the court approved the stipulation,

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TPR – Self-Representation – Competency of Court – Delay in Disposition Hearing

Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06

Issue/Holding: Holding the dispositional hearing beyond the 45-day time limit set by § 48.424(4) did not deprive the trial court of competency to proceed, where good cause existed for continuance under § 48.315(2), namely that the respondent’s attorney was going to be out of town during a portion of the limitation period, and the trial court expressly found good cause to schedule the hearing after counsel’s return,

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TPR – Self-Representation – Conducting Hearing in Absence of Pro Se Respondent

Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06

Issue/Holding: Holding the dispositional hearing beyond the 45-day time limit set by § 48.424(4) did not deprive the trial court of competency to proceed, where good cause existed for continuance under § 48.315(2), namely that the respondent’s attorney was going to be out of town during a portion of the limitation period, and the trial court expressly found good cause to schedule the hearing after counsel’s return,

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TPR – Self-Representation – Standards

Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06 (published)

Issue/Holding1: The same “self-representation competency standards developed in … criminal cases” applies to TPRs, ¶¶9-16.

Standards summarized, ¶¶17-23. Though much of this recitation is fairly abstract, the following embellishment of Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980) may be of interest, ¶20 n.

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Waiver/Assertion of Rights – Anticipatory (Pre-Custodial) Assertion of Right to Counsel

State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis

Issue: Whether pre-custodial assertion (during standoff with police) of right to counsel barred interrogation following subsequent arrest.

Holding:

¶13      Hassel is dispositive here. … Observing that Miranda safeguards apply only to custodial interrogations and that Hassel did not argue he was in custody when he invoked his right to silence,

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Waiver – Re-Administration of Rights: Unnecessary Where Proper Waiver 21 Hours Earlier

State v. Yediael Yokrawn Backstrom, 2006 WI App 114
For Backstrom: Timothy A. Provis

Issue: Whether re-administration of Miranda warnings was necessary where the suspect had previously waived those rights following a “full and proper recitation twenty-one hours earlier.”

Holding:

¶11      Based on the record presented, we conclude that the trial court did not err in failing to suppress Backstrom’s statement.

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Statements – Suppression: Electronic Recording — Adults

State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis

Issue1: Whether failure to electronically record Kramer’s interrogations requires suppression.

Holding1: Although the supreme court exercised supervisory authority granted it under Wis. Const. Art. VII, § 7, to require recording of juvenile interrogations, State v. Jerrell C.J., 2005 WI 105, the grant of authority to court of appeals under Wis.

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Briefs – Citing Unpublished Opinion

State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06For Milanes: Joan M. Boyd

Issue/Holding:

¶21      … Further, appellate counsel cited an unpublished case in her opening brief, contrary to Wis. Stat. Rule 809.23(3). This does not appear to be inadvertent, since the citation ends with the parenthetical “(unpublished).” Our supreme court has reasoned that the rule against citing unpublished cases is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration.

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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.