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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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Binding Authority – Dicta, Conflicting With Supreme Court Precedent, Withdrawal by Court of Appeals
State v. Kenneth V. Harden, 2005 WI App 252 For Harden: Ralph Sczygelski Issue/Holding: Holding of Wisconsin supreme court binds the court of appeals, such that dicta in decision of latter court in conflict with supreme court holding must be withdrawn, ¶5 citing, Nommensen v. American Continental Ins. Co., 2000 WI App 230, ¶16, 239 Wis. 2d […]
Restitution — Nexus — Generally
State v. Mark R. Johnson, 2005 WI App 201 For Johnson: Jefren Olsen , SPD, Madison Appellate Issue/Holding: ¶13 Second, before a trial court may order restitution “there must be a showing that the defendant’s criminal activity was a substantial factor in causing” pecuniary injury to the victim in a “but for” sense. Longmire, 272 Wis. […]
Restitution — Special Damages — Generally
State v. Mark R. Johnson, 2005 WI App 201 For Johnson: Jefren Olsen, SPD, Madison Appellate Issue/Holding: ¶12 First, restitution is limited to “special damages … which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.” Wis. Stat. § 973.20(5)(a). The […]
Restitution — Damages — Causation — Lost Profits
State v. Mark R. Johnson, 2005 WI App 201 For Johnson: Jefren Olsen , SPD, Madison Appellate Issue/Holding1: Lost profits are “special damages,” and therefore subject to a restitution order, because the underlying causal criminal conduct could give rise to a civil action based on the torts of conversion and interference with prospective contractual relationships, ¶¶16-17. […]
Appellate Procedure – Harmless Error Test – Confrontation
State v. Harry L. Seymer, 2005 WI App 93 For Seymer: Andrea T. Cornwall, SPD, Milwaukee Appellate Issue/Holding: Improper termination of defendant’s cross-examination of the sexual assault complainant was not harmless error, where abbreviated though it was, cross had already “raise(d) serious questions concerning A.S.’s credibility and the veracity of her account …. Thus, it […]
Appellate Procedure – Harmless Error – Jury Instructions – Omitted Element
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed For Draughton: Stephen L. Miller Issue/Holding: Although failure to instruct the jury on an element is subject to harmless error analysis per State v. Harvey, 2002 WI 93, ¶¶44, 49, 254 Wis. 2d 442, 647 N.W.2d 189, in this instance the error […]
Review — Sentence After (Extended Supervision) Revocation — Sufficiency of Articulated Rationale
State v. Brandon E. Jones, 2005 WI App 259 For Jones: Amelia L. Bizarro Issue: Whether the sentencing court provided sufficient reasons for Jones’s reconfinement following revocation of extended supervision. Holding: ¶9 …. The key is for the circuit court to provide sufficient information about its reasoning so as to allow for meaningful review. The “need […]
Presentence Report — Use / Subsequent to Sentencing
State v. James L. Montroy, 2005 WI App 230 For Montroy: Jay E. Heit; Stephanie L. Finn Issue/Holding: ¶14 Montroy also argues a new PSI is necessary because the inaccurate information will continue to prejudice him in the future. He cites Wis. Admin. Code § DOC 328.27 (Nov. 2002) for examples of the various uses for […]
NGI Procedure – Abandonment of NGI Plea and Necessity of Personal Colloquy
State v. Jennifer F. Francis, 2005 WI App 161 For Francis: Hans P. Koesser Issue: Whether the trial court must engage the defendant in a personal colloquy before allowing an NGI plea, § 971.06(1)(d), to be abandoned. Holding: Because an NGI plea is not a constitutional or otherwise fundamental right, a personal colloquy with the defendant isn’t […]
SVP: Dangerousness, Reduced Showing — Effective Date
State v. Shermell G. Tabor, / State v. Ronald Irvin Ryan, 2005 WI App 107 For Tabor / Ryan: Ellen Henak, SPD, Milwaukee Appellate Issue/Holding: Legislative modification of the definition of SVP “dangerousness” (2003 Wis Act 187, §§ 2, 2m, amending §§ 980.01(7) and 980.02(2)(c); reducing the necessary showing from “substantial probability” to mere likelihood of sexual violence) has an effective […]
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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.