On Point

State v. Scott Edward Ziegler, 2005 WI App 69
For Ziegler: Martha K. Askins, SPD, Madison Appellate

Issue: Whether a trial court retains authority to order restitution 14 years after entering a “to be determined” restitution order in the original judgment of conviction.

Holding:

¶11. As we have repeatedly explained, “Restitution is governed by Wis. Stat. § 973.20, which requires courts to order full or partial restitution ‘under this section’

State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee Trial

Issue: Whether challenge to an earlier change-of-placement delinquency order, as a means of challenging the jurisdictional basis for the current ch. 980 commitment petition, comes too late to be entertained.

Holding:

¶8 The State first responds that Tremaine’s challenge to the 2001 change of placement order is too late,

State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski

Issue/Holding: Where the State admitted to breaching the plea bargain, and the defendant was explicitly offered the option of seeking plea-withdrawal but personally affirmed that he did not wish that remedy, the appellate court has “nothing to review on this issue since the trial court was never asked to make a ruling on the question,” ¶12.

State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller

Issue/Holding: ¶8 n. 2:

We observe that Draughon did not object to the jury instruction when provided the opportunity by the circuit court. Draughon nonetheless raises his objection here under color of his ineffective assistance of counsel claim as well as his claim that the real controversy was not fully tried.

State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding:

¶7. … The three standards of appellate review of circuit court decisions have been stated numerous times, although case law has articulated sub-principles and different ways of stating the standards of review: (1) A reviewing court will not overturn findings of fact unless clearly erroneous.

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binds the court of appeals, such that dicta in decision of latter court in conflict with supreme court holding must be withdrawn, ¶5 citing, Nommensen v. American Continental Ins.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 129, 619 N.W.2d 137.

Just to be perfectly clear: the court of appeals does not have authority to overrule its ownprecedent, 

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. 2d 759, ¶13; State v.

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 term “special damages” as used in the criminal restitution context means any readily ascertainable pecuniary expenditure paid out because of the crime. 

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.

Issue/Holding2: Because at least a minimal amount of speculation inheres to such a claim,

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 is within the realm of reasonable possibility that the completed cross-examination would have produced evidence that seriously undermined the credibility and recollections of the victim,