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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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Waiver of Issue: Statutory Double Jeopardy – Guilty Plea Rule
State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/16/02 For Lasky: Eileen A. Hirsch, SPD, Madison Appellate Issue/Holding: Claim of “statutory double jeopardy,” § 939.71, not barred by guilty plea waiver rule; court therefore may consider merits of whether elements of federal bank robbery conviction are the same, and therefore preclude prosecution of, […]
Waiver of Issue: Sentence – Failure to Object to Inaccurate Information
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02 For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate Issue/Holding: Reviewing court may address merits of attack on sentence based on inaccurate information, notwithstanding absence of contemporaneous objection. ¶25. It is appropriate here for the court to overlook waiver, where the state […]
Waiver of Issue: Territorial Jurisdiction Defense
State v. Anthony J. Randle, 2002 WI App 116, PFR filed 4/2/02 For Randle: Paul G. Bonneson Issue: Whether a territorial jurisdiction objection (that none of the constitutent elements occurred in the state, § 939.03(1)) is waived by guilty plea to a lesser offense. Holding: ¶14 In this case, we need not decide whether a defendant […]
Judicial Estoppel Bar to Argument — Complete Adoption of Party’s Position Required
State v. Edward W. Johnson, Jr., 2002 WI App 166 For Johnson: Robert T. Ruth Issue/Holding: Judicial estoppel requires that the party’s position be completely adopted. (Johnson therefore not estopped from challenging restitution amount he agreed to below because he also asked for probation but was given some jail time.) ¶24.
Judicial Estoppel Bar to Argument — Acceptance of Curative Instruction Bars Appellate Challenge to Its Efficacy
State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02 For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate Issue: Whether defendant is judicially estopped from appellate challenge to the efficacy of a curative instruction, where he: requested such an instruction, expressed approval of it when it was given, and failed to move for […]
Appellate Procedure: Challenge to Judicial Substitution Refusal – Failure to Seek Chief Judge’s Review
Barbara R.K. v. James G., 2002 WI App 47 Issue: Whether review of a denied request for substitution of judge is waived by failure to seek review of the denial by the local chief judge. Holding: ¶9. … The statute then provides: ‘If the judge named in the substitution request finds that the request was […]
Review of Waived Issue: Plain Error – Polygraph Evidence
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02 For Frank: Jane K. Smith Issue: Whether testimonial references to an accepted offer to take a polygraph amounted to plain error. Holding: Plain error, § 901.03(4), requires “obvious” error, and is reserved for likely violations of basic constitutional right: “Frank identified no basic […]
Standing Objection Insufficient to Preserve “Haseltine” Error
State v. Carlos R. Delgado, 2002 WI App 38 For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate Issue/Holding: ¶11. Under the facts and circumstances of this case, it was incumbent upon defense counsel to police Ortiz’s testimony. This area of the law — what a therapist can and cannot testify to — […]
Appellate Procedure – Standard of Review: Implied Consent Statute
State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02 For Baratka: Michael C. Witt Issue/Holding: ¶7. Application of the implied consent statute to an undisputed set of facts is a question of law that we review independently. Similarly, reconciling constitutional considerations of due process and equal protection with the requirements of the […]
Restitution – Special Damages – “Loss of Use” – Rental Fees
State v. Joseph A. Kayon, 2002 WI App 178 For Kayon: Ronald J. Sonderhouse Issue/Holding: Both the replacement cost of a television stolen by the defendant, and rental fees of a television while the case was pending, may be recovered in restitution. The rental fees represent “loss of use” damage that could be claimed in a civil action […]
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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.