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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.
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Sentence Credit – Time Spent in Custody after Extended Supervision Revocation but before Reconfinement Hearing
State v. Lee Terrence Presley, 2006 WI App 82 For Presley: Richard D. Martin, SPD, Milwaukee Appellate Issue/Holding: Sentence credit is required for for days spent in jail between dates of revocation of extended supervision in an earlier case and sentencing on both the revoked supervision and a new case. ¶10 Presley submits that Beets requires sentence credit until […]
Postconviction Motions – § 974.06, Serial Litigation Bar
State v. David R. Kaster, 2006 WI App 72, PFR filed 4/26/06; prior appeal: 2003 WI App 105 For Kaster: Robert R. Kaster Issue/Holding: ¶9 Kaster next argues that the evidence was legally insufficient to sustain the disorderly conduct charge. …. Kaster has not demonstrated a “sufficient reason” under § 974.06(4) to overcome the fact […]
Waiver (of Appellate Counsel) — By Conduct
State ex rel. Perry Van Hout v. Endicott, 2006 WI App 196, PFR filed 10/11/06 For Van Hout: Robert R. Henak Issue: Whether Van Hout waived his right to appellate counsel where he rejected counsel’s offer of a no-merit report and then, after having been warned of the dangers of proceeding pro se, chose neither […]
Waiver – Closing Argument – Failure to Move for Mistrial
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06 For Schutte: Donald T. Lang, SPD, Madison Appellate Issue/Holding: Failure to move for mistrial waived any objection to the prosecutor’s closing argument, ¶60. Nor do the comments rise to the level of plain error necessary to overcome waiver: ¶61 The State points out that, […]
Appellate Procedure – Waiver of Argument: Confrontation – Crawford Issue, Trial Held Before Crawford Decided
State v. Jeffrey Lorenzo Searcy, 2006 WI App 8 For Searcy: Joseph L. Sommers Issue/Holding: Failure to raise a Crawford objection didn’t amount to waiver: “However, Searcy could not have raised at trial a Confrontation Clause claim based on Crawford v. Washington, 541 U.S. 36 (2004), because his December 2002 trial preceded the March 2004 […]
Guilty Plea Waiver Rule – Generally, Exception for IAC Claim
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06 For Milanes: Joan M. Boyd Issue/Holding: ¶13 A valid guilty or no contest plea waives all nonjurisdictional defenses to a conviction, including constitutional violations. See State v. Riekkoff, 112 Wis. 2d 119, 122-23, 332 N.W.2d 744 (1983). One exception to this rule is […]
Restitution — Law Enforcement as “Victim” — Damage to Squad during Pursuit
State v. Earl W. Haase, 2006 WI App 86, (State’s) PFR filed 5/17/06 For Haase: Glenn L. Cushing, SPD, Madison Appellate Issue: Whether restitution may be ordered for damage caused to a squad car destroyed by fire during pursuit of the defendant. Holding: A governmental “agency must be a direct victim of the criminal conduct to be reimbursed for a […]
Judicial Estoppel Bar to Argument, General Principles
Olson v. Darlington Mutual Ins., 2006 WI App 204 Issue/Holding: ¶4 … The required elements of judicial estoppel are: First, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the […]
Appellate Procedure: Standard of Review – Generally
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06 For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: Where the appellate court is positioned equally to review the matter, whether labeled one of fact or of law, no deference need be given the trial court: ¶19 … (T)his court is in just […]
Restitution — Defenses — Set-Off (Civil Settlement)
Herr v. Bradley D. DeBraska, 2006 WI App 29 Issue/Holding1: Where the defendant and victim had fully settled a civil claim for defendant’s liability arising out of the crime, but the defendant’s wages were subsequently garnished by the State to satisfy the restitution order in the criminal case, the trial court properly exercised discretion to reopen […]
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