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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.
SVP – Postdisposition: Supervised Release – Reconsideration – Newly Discovered Evidence – Assessment of Pre-Existing Information
State v. Daniel Williams, 2001 WI App 155
For Williams: Adrienne M. Moore, SPD, Racine Trial
Issue: Whether the grant of a petition for supervised release (§ 980.08) can be vacated on the basis of a periodic re-examination report (§ 980.07) which is a mere assessment of the same information utilized during the supervised release proceeding.
Holding: A motion for relief from judgment, § 980.07, may be based on newly discovered evidence,
SVP – Trial: Witnesses – 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 … she was qualified to give her opinion on the ultimate issue.” ¶29.
Bail: Forfeiture – Discretion
Barbara Melone v. State, 2001 WI App 13, 240 Wis. 2d 451, 623 N.W.2d 179For Melone: Theodore B. Kmiec III
Issue: Whether the trial court properly exercised discretion in declining to set aside an order forfeiting bail, where the court indicated that it “always refuses to return [forfeited] bail money no matter what the circumstance,” ¶1.
Holding: “[T]he statute on bail forfeitures, WIS. STAT. § 969.13(2) (1997-98), requires the court to exercise discretion and consider factors for and against enforcing the forfeiture on a case-by-case basis.
Review – Conflict between oral pronouncement written judgment
State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: “(W)here there is conflict between a trial court’s oral pronouncement and a written judgment, the oral pronouncement controls.” ¶27, citing State v. Perry, 136 Wis. 2d 92, 114, 401 N.W.2d 748 (1987). This rule is applicable even though “the trial court’s oral pronouncement came after, rather than before,
SVP Commitments: Counsel – Effective Assistance, Appeal
State ex rel. Ruven Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, reconsideration denied2002 WI 12, reversing unpublished court of appeals order
For Seibert: Gregory P. Seibold; amicus brief: Howard B. Eisenberg, Dean, Marquette Law School
Issue/Holding:
¶1. This case presents two issues. The first issue is whether an indigent sexually violent person, as defined by Wis.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate, Information within Defendant’s Knowledge, but not Imparted to Counsel
State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke
Issue/Holding: “This court will not find counsel deficient for failing to discover information that was available to the defendant but that defendant failed to share with counsel.” ¶24.
Right to Counsel – Inherent Judicial Authority to Appoint – Indigency Determination – Use of Federal Poverty Guidelines
State v. Jose Nieves-Gonzalez, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913
Issue: Whether the trial court incorrectly applied federal poverty guidelines in refusing to appoint counsel at county expense, after the defendant failed to qualify under public defender standards.
Holding: Although federal poverty guidelines are not necessarily conclusive, they should be used “as a proper consideration for court-appointed counsel,” ¶8. Here, the court considered these guidelines in denying the defendant’s request for counsel without a hearing,
Defense of Others – Terminating Interference by Police Officer
State v. John F. Giminski, 2001 WI App 211, PFR filed 9/20/01
For Giminski: Edward J. Hunt
Issue: Whether the defendant was entitled to invoke the privilege of defense of others, § 939.48(4), in using potentially deadly force against police officers who had pulled a gun on his daughter while executing a valid warrant.
Holding:
¶13. (T)he privilege of defense of others, like the privilege of self-defense,
Constitutional Defenses – Selective Prosecution
State v. Carl R. Kramer, 2001 WI 132, reversing and remanding 2000 WI App 271, 240 Wis. 2d 44, 622 N.W.2d 4
For Kramer: Stephen D. Willett
Issue1: Whether Kramer established a prima facie case for selective prosecution.
Holding: On a selective prosecution claim, the defendant must show both discriminatory purpose and effect. The state concedes discriminatory purpose. As to effect: Prosecutorial selectivity is itself non-problematic.
Defenses – Issue Preclusion – “Offensive” Use – Sexually Violent Person Proceeding
State v. Ronald G. Sorenson, 2001 WI App 251, PFR filed
For Sorenson: T. Christopher Kelly
Issue1: Whether issue preclusion (collateral estoppel) may be used “offensively” by the state in a Ch. 980 trial to bar a respondent from presenting evidence that s/he didn’t commit the offense which underlies the qualifying conviction.
Holding:
¶28 Accordingly, we hold that the doctrine of issue preclusion is available for use offensively in Chapter 980 trials.
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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.