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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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§ 973.195, TIS Sentence Adjustment Petition – Exercise of Discretion
State v. David S. Stenklyft, 2005 WI 71, on bypass For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate Issue/Holding: ¶126 [T]he record of the proceedings must clearly demonstrate that the circuit court exercised its discretion and weighed the appropriate factors when the court reached its decision on sentence adjustment. An example of such balancing would be […]
Separation of Powers Doctrine – Prosecutorial Veto and § 973.195, TIS Sentence Adjustment
State v. David S. Stenklyft, 2005 WI 71, on bypass For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate Issue/Holding: The prosecutorial veto written into the TIS sentence-adjustment provision, § 973.195, is unconstitutional: ¶83 … “[S]hall” is interpreted as directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a […]
Sentence Modification/Review: Sentence Adjustment, § 973.195: Applicability to TIS-I
State v. James Hubert Tucker, Jr., 2005 WI 45, affirming summary order of court of appeals For Tucker: Donald T. Lang, SPD, Madison Appellate Issue/Holding: ¶18 An analysis of 2001 Wis. Act 109 by the Legislative Reference Bureau clearly supports the conclusion that persons sentenced under TIS-I are able to utilize the procedure set forth in Wis. […]
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Failure to Investigate Facts (Impeachment of Key Witnesses
State v. Jeannie M.P., 2005 WI App 183 For Jeannie M.P.: Michael Yovovich, Eileen Hirsch, SPD, Madison Appellate Issue/Holding: Where counsel knew, or should have known, of evidence establishing possible motives for each of the two crucial State’s witnesses; and where adducing evidence of those motives would have been consistent with the chosen theory of defense, […]
Counsel – Ineffective Assistance – Deficient Performance — Failure to Research Law – “Unsettled” or Murky Law
State v. John R. Maloney, 2005 WI 74, affirming 2004 WI App 141, but nonetheless retaining jurisdiction pending resolution of other issues For Maloney: Lew A. Wasserman Issue/Holding: Failure to move to suppress evidence based on asserted violation of SCR 20:4.2 does not support deficient performance, given that applicability of this Rule was not settled: ¶23 The split of authorities described […]
Disobedient Child Defense to Compulsory School Attendance, § 118.15(5)(b)2
State v. Gwendolyn McGee, 2005 WI App 97 For McGee: Amelia L. Bizarro Issue/Holding: The disobedient-child defense to a compulsory-attendance charge is an affirmative defense issue to be presented to the fact-finder at trial for resolution (as opposed to disposition by pretrial motion).
Territorial Jurisdiction Defense, § 939.03 — First-Degree Homicide — Intent as “Constituent Element [That] Takes Place”
State v. Derek Anderson, 2005 WI 54, on certification Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate Issue/Holding: ¶47 We conclude that § 939.03(1)(a) is satisfied upon proof that the defendant committed an act in Wisconsin manifesting the intent to kill. Specifically, intent to kill, which is a constituent element […]
Defenses – Issue Preclusion: TPR
Brown County DHS v. Terrance M., 2005 WI App 57 For Terrance M.: Theresa J. Schmieder Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts […]
OWI – Penalty Provision – Timing of Priors
State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05 For Matke: James B. Connell Issue: Whether the number of prior OWI convictions used for penalty enhancement, § 346.65(2), is determined as of date offense is committed or date of sentencing for offense. Holding: ¶5. How and when to count prior OMVWI convictions for purposes of penalty […]
OWI — Evidence – Admissibility, Field Sobriety Tests
State v. Richard B. Wilkens, 2005 WI App 36 For Wilkens: Waring R. Fincke Issue/Holding: ¶14. In Wisconsin, the general standard for admissibility is very low. Generally, evidence need only be relevant to be admissible. See Wis. Stat. § 904.02; State v. Eugenio, 219 Wis. 2d 391, 411, 579 N.W.2d 642 (1998) (“All relevant evidence is admissible unless otherwise […]
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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.