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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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Common Law defenses – Collateral Attack on Element of Custody Order, § 948.31, as Procured by Fraud
State v. John W. Campbell, 2006 WI 99, on certification For Campbell: Charles B. Vetzner, SPD, Madison Appellate Issue: Whether a § 948.31 defendant is entitled to raise a common-law privilege defense against the element of “legal custody” by collaterally attacking the court’s custody order as having been procured by fraud. Holding: ¶56 There are good reasons […]
SVP – Pretrial: Evaluation — Prosecutorial Meddling in Process
State v. Jonathan Bell, 2006 WI App 30 For Bell: Leonard D. Kachinsky Issue: Whether intervention of the local prosecutor to obtain a second DOC evaluation, which resulted in a referral for SVP commitment after the first DOC evaluation determined insufficient likelihood of reoffending, violated ch. 980 or due process. Holding: ¶11 Our supreme court […]
Review: Administrative Body – Construction of Constitutional Provision
Racine Harley-Davidson, Inc. v. State of Wisconsin Division of Hearings and Appeals, 2006 WI 86 Issue/Holding: ¶14 By granting deference to agency interpretations, the court has not abdicated, and should not abdicate, its authority and responsibility to interpret statutes and decide questions of law. Some cases, however, mistakenly fail to state, before launching into a […]
Waiver of Appeal — “Partial” No-Merit Report
State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”) For Ford: James R. Troupis For Amicus: Joseph N. Ehmann, SPD, Madison Appellate Issue/Holding: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled […]
Postconviction Motions – § 974.06, Serial Litigation Bar, Penalty Enhancer Exception
State v. Thomas A. Mikulance, 2006 WI App 69 Pro se Issue/Holding: A “narrow” exception to the serial litigation bar of § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies […]
No-Merit Report: No Serial Litigation Bar Where Arguably Meritorious Issue Overlooked
State v. Ricky J. Fortier, 2006 WI App 11 Issue/Holding: Fortier’s failure to respond to no merit report does not, under the circumstances, work serial litigation bar to subsequent, arguably meritorious challenge to sentence: ¶15 Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even […]
Competency of Court and Time Limit, § 48.422(2) — Continuance Beyond Time Limit for Fact-Finding Hearing – Factors
State v. Robert K., 2005 WI 152, affirming unpublished opinion Issue: Whether a TPR court lost competency to proceed because the fact-finding hearing was held more than 45 days after the contested plea hearing, the time limit set by § 48.422(2). Holding: A continuance of the fact-finding hearing beyond the 45-day limit may properly be […]
Admissibility of Evidence — Expert Opinion Testimony on TPR Parent’s Ability to Meet Condition for Child’s Return
Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children. Holding: ¶40 In deciding the issue of foundation, the circuit […]
TPR, Sufficiency of Evidence — Jury Verdict That State Failed to Prove Grounds
State v. Lamont D., 2005 WI App 264 Issue Whether the State sufficiently proved grounds to support TPR such that the court should change the jury’s special verdict to the contrary. Holding: “Because the record contains contradictory evidence and a key witness did not testify, and because it is possible the jury did not believe […]
TPR – Appellate Procedure — State’s Appeal, Commenced by GAL
State v. Lamont D., 2005 WI App 264 Issue/Holding:¶1 n. 4: Lamont argues that this court does not have jurisdiction over this matter because the guardian ad litem filed the notice of appeal and the State simply joined in the appeal instead of the other way around. We reject Lamont’s contention. WISCONSIN STAT. § 48.235(7) plainly […]
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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.