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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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Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – More Onerous Plea Offer After Defendant Obtains Relief
State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02 For Tkacz: Mark S. Rosen Issue/Holding: Even assuming that the law of vindictive prosecution (presumption of vindictiveness attaches to less favorable prosecutorial action following successful appeal) applies to failure to re-offer same plea bargain following reversal of conviction, the facts would not support vindictiveness. The […]
Double Jeopardy – Multiplicity: Harassment Injunction (§ 813.125(4)) Not Lesser Offense of Harassment (§ 947.013(1r))
State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02 For Sveum: Ian A.J. Pit Issue/Holding: Violation of harassment injunction isn’t lesser offense of harassment, each requiring proof of distinct element. ¶¶23-28. (Court stressing, in particular, that for harassment defendant need only be “subject” to injunction but not actually violate it. ¶25.)
Defenses – Imperfect Self-Defense – Jury Instructions
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9 For Head: John D. Hyland, Marcus J. Berghan Issue/Holding: ¶103. Based on the plain language of Wis. Stat. § 940.05(2), supported by the legislative history and articulated public policy behind the statute, we conclude that when imperfect self-defense is placed in […]
SVP – Habeas Challenge to Commitment – Venue
State ex rel Edwin C. West v. Bartow, 2002 WI App 42 For West: Leonard D. Kachinsky Issue: Whether the court had discretion to order change of venue from Winnebago (county of current SVP confinement) to Milwaukee (county of commitment), on habeas challenge to the commitment. Holding: Venue was proper in Winnebago under § 801.50(4)(b) […]
SVP- Trial: Evidence — Actuarial Instruments
State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02 For Tainter: Jack E. Schairer, SPD, Madison Appellate Issue/Holding: The trial court properly exercised discretion in admitting into evidence actuarial instruments (by determining that they were of the type commonly relied on by experts to assess sex offender risk; and by allowing Tainter […]
Waiver of Objection: Stipulation
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02 For Frank: Jane K. Smith Issue: Whether defendant waived review of objection to admissibility of misconduct evidence by entering into a “Wallerman” stipulation. Holding: A stipulation under State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996) (an element is […]
Defendant’s Presence at Postconviction Hearing
State v. Paul L. Polak, 2002 WI App 120, PFR filed 5/3/02 For Polak: Philip J. Brehm Issue/Holding: A defendant need not be produced for a postconviction hearing where there are no substantial issues of fact to resolve. ¶22.
Mootness — Delinquency — Expired Dispositional Order
State v. Stephen T., 2002 WI App 2 For Stephen T.: Raymond M. Dall’Osto Issue: Whether appeal of a juvenile delinquency adjudication is rendered moot by expiration of its dispositional order. Holding: No, at least in this instance: certain facets of the order (DNA sample; sex offender registration) survive, and appellate review will therefore have […]
Expert — Qualifications
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed For Sprosty: Jack E. Schairer, SPD, Madison Appellate Issue: Whether the trial court erred in refusing to qualify a social worker as an expert in this Ch. 980 supervised release proceeding. Holding: Because the witness had “expertise with respect to treating sex offenders … […]
False Testimony
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed For Sprosty: Jack E. Schairer, SPD, Madison Appellate Issue: Whether an expert witness’s testimony should have been struck retrospectively when it became known, after the proceeding had concluded, that he had lied about his credentials and background, and had committed misconduct, causing him to be […]
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