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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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§ 940.03, Felony-Murder (1999-2000) — Stand-Alone, Unclassified Crime Not Penalty Enhancer
State v. Brandon L. Mason, 2004 WI App 176 For Dawson: Ellen Henak, SPD, Milwaukee Appellate Issue/Holding: The felony murder statute, § 940.03 (1999-2000), contains characteristics suggestive of both penalty enhancers (it adds a specified term to the maximum penalty applicable to the underlying crime), ¶15, and also substantive offenses (it is located in a chapter […]
Expectation of Privacy — Garbage
State v. Sylvester Sigarroa, 2004 WI App 16, PFR filed 1/2/04 For Sigarroa: John Pray, UW Law School Issue/Holding: ¶14. The State and Sigarroa propose different tests for determining the constitutionality of a warrantless garbage search… . … ¶16. Both parties are able to cite case law in support of their competing approaches. However, upon close […]
§ 940.225(2)(c), Sexual Assault: Mentally Ill Victim – Sufficiency of Evidence
State v. Eugene M. Perkins, 2004 WI App 213, PFR filed 11/9/04 For Perkins: Jeffrey W. Jensen Issue Whether expert testimony is required to establish the victim’s mental illness, an element of § 940.225(2)(c). Holding: This element may be shown through credible lay opinion testimony: ¶17 Here, the State had to prove four things: (1) […]
§ 940.225(2)(g), Sexual Assault – Elements: Employee of In-Patient Treatment Facility Within § 940.295(2) / § 50.135(1)
State v. John F. Powers, 2004 WI App 156 For Powers: Marcus J. Berghahn; John D. Hyland Issue/Holding: An employee of the Tomah VA Medical Center is not an employee of an in-patient treatment facility within the meaning of §§ 940.225(2)(g), 940.295(2)(b), (c), (h), (k), and 50.135(1), because the Center is not licensed or approved […]
Expectation of Privacy – Curtilage – (Attached) Garage
State v. Walter Leutenegger, 2004 WI App 127 For Leutenegger: Bill Ginsberg Issue/Holding: ¶21 n. 5: The State does not challenge the circuit court’s holding that the garage was part of the curtilage of Leutenegger’s house and subject to the warrant requirement. This implicit concession appears appropriate in this case. Published decisions on this topic consistently hold that […]
§ 941.29, Felon in Possession of Firearm — Constitutionality
State v. Louis D. Thomas, 2004 WI App 115, PFR filed 6/17/04 For Thomas: Joseph L. Sommers Issue/Holding: Wis. Const. art. I, § 25 (“right to keep and bear arms”) did not effectively repeal § 941.29 (felon in possession). ¶¶7-12. Issue/Holding: § 941.29 is neither vague, ¶¶14-18, nor overbroad, ¶¶19-23. Issue/Holding: § 941.29 doesn’t violate […]
§ 946.12(3), Misconduct in Public Office: Vagueness, Overbreadth, Speech and Debate Clause, Separation of Powers Challenges
State v. Charles Chvala, 2004 WI App 53, affirmed, 2005 WI 30 For Chvala: James A. Olson, et. al, Lawton & Cates Holdings: Section 946.12(3), which proscribes exercising a discretionary power inconsistent with the duties of the defendant’s office (in this instance, a state legislator) is not vague. Though those “duties” aren’t identified in any […]
Bail Jumping, § 946.49(1)(b) – Necessity of Finding of Guilt of Underlying Crime
State v. Wyatt Daniel Henning, 2003 WI App 54, reversed on other grounds, 2004 WI 89 For Henning: Jack E. Schairer, SPD, Madison Appellate Issue/Holding: ¶25. We appreciate that State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d 393, review denied, 2002 WI 121, 257 Wis. 2d 122, 653 N.W.2d 893 (Wis. Sept. 18, […]
Escape, § 946.42 – “Custody” – Ch. 980 Commitment
State ex rel. Michael J. Thorson v. Schwarz, 2004 WI 96, affirming unpublished decision of court of appeals For Thorson: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: Someone being held in connection with ch. 980 proceedings is not subject to the escape statute, § 946.42, for absconding from that custody: “¶28 … (T)here is no incorporation of Chapter 980 […]
§ 948.07, Enticement — Elements
State v. John S. Provo, 2004 WI App 97, PFR filed 5/7/04 For Provo: William H. Gergen Issue/Holding: “… We hold that § 948.07 requires only that the defendant cause the child to go into any vehicle, building, room, or secluded place with the intent to engage in illicit conduct, but not that the child […]
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