On Point

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,

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 Ruven Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, reconsideration denied2002 WI 12, reversing unpublished court of appeals order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.

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.

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,

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,

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.

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.  

State v. Philip M. Canon, 2001 WI 11, 241 Wis. 2d 164, 622 N.W.2d 270, reversing State v. Canon, 230 Wis. 2d 512, 602 N.W.2d 316 (Ct. App. 1999)
For Canon: Alan D. Eisenberg

¶1 The question presented in this case is whether the doctrine of issue preclusion bars the State from prosecuting a defendant under Wis. Stat. § 946.31(1)(a)(1997-98) for allegedly committing perjury at a criminal trial where the defendant was tried and acquitted on a single issue,

State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney

Issue: Whether a verdict of acquittal in the defendant’s prior trial estopped the prosecution from retrying the ultimate fact resolved by that acquittal.

Holding:

¶7 ‘Under the collateral estoppel doctrine an issue of ultimate fact that is determined by a valid and full judgment cannot again be litigated between the same parties in a subsequent lawsuit.’ State v.

State v. Jeremy J. Hanson, 2001 WI 70, 628 N.W.2d 759
For Hanson: James B. Connell

Issue: Whether DOT rescission of a defendant’s HTO status under § 351.09 “relates back” to the date of the charged offense so as to nullify that HTO classification and render him or her ineligible for enhanced sentencing.

Holding:

¶32. Given the accepted meaning of the language of § 351.09 and the legal effect attributable to ‘rescind’ and ‘rescission,’ we conclude that the effect of the Department’s recalculation of Hanson’s HTO status was an annulment and abrogation of that status from the outset of its existence.