809.30 Annotation
Sub. (1) (e) is clarified to establish that the original of the transcript is filed with the trial court by the court reporter whereas a copy is served by the court reporter on the defendant. Also, the transcript of postconviction proceedings must be filed and served by the court reporter within 20 days of ordering by the defendant.
809.30 Annotation
Sub. (1) (i) is amended to provide that the clerk of the trial court shall transmit the record to the court of appeals no later than 40 days after the filing of the notice of appeal. Presently transmittal of the record is governed by Rule 809.15 (4) which allows up to 90 days from the filing of the notice of appeal.
809.30 Annotation
The total time period from ordering the transcript to transmittal of the record to the court of appeals has not been altered by these amendments.
809.30 Annotation
Judicial Council Committee's Note, 1978, explained that extensions of time for taking various steps under Rule 809.30 can be granted by the court of appeals under Rule 809.82. In State v. Rembert,
99 Wis. 2d 401,
299 N.W. 2d 292 (Ct. App. 1980), the court of appeals stated that its authority to extend the time periods of Rule 809.30 is to the exclusion of the trial court. The court of appeals, not the trial court, is responsible for monitoring, enforcing or extending the time periods of Rule 809.30. [Re Order effective Jan. 1, 1982]
809.30 Note
Judicial Council Note, 1984: Requiring that the appellate process be initiated by filing a notice in the trial court within 20 days after sentencing is intended to:
809.30 Annotation
Expedite the process; the information needed for a decision regarding postconviction relief is available to the defendant at sentencing and the decision can usually be made shortly thereafter.
809.30 Annotation
Emphasize trial counsel's duties to counsel the defendant about the decision to seek postconviction relief and to continue representation until appellate counsel is retained or appointed.
SCR 20.34 (2) (d); Whitmore v. State,
56 Wis. 2d 706,
203 N.W. 2d 56 (1973).
809.30 Annotation
Create a record in the trial court showing whether the postconviction process has been timely invoked.
809.30 Annotation
Notify the judge, clerk, court reporter and district attorney that postconviction relief is contemplated and allow the district attorney to request a redetermination of indigency in public defender cases.
809.30 Annotation
Give the public defender the information needed to appoint counsel and order transcripts promptly, and to decide whether the defendant's indigency must first be determined or redetermined. [Re order effective July 1, 1985]
809.30 Note
Judicial Council Note, 1986: Sub. (1) is amended to clarify the application of the statute when the appeal is taken from the final judgment or order in a non-criminal case.
809.30 Annotation
Sub. (2) (fm) is prior s. 48.47 (2), renumbered for more logical placement in the statutes. [Re Order eff. 7-1-87]
809.30 Annotation
Appellate court did not abuse its discretion in refusing to allow convicted accused to pursue late appeal. State v. Argiz, 101 W (2d) 546, 305 NW (2d) 124 (1981).
809.30 Annotation
Limitation period under sub. (1) (f), 1983 stats. [now sub. (2) (h)] cannot begin to run until entry of appealable order. In Interest of M. T. 108 W (2d) 410, 321 NW (2d) 289 (1982).
809.30 Annotation
For issues on appeal to be considered as matter of right, postconviction motions must be made except in challenges to sufficiency of evidence under 974.02 (2). State v. Monje, 109 W (2d) 138, 325 NW (2d) 695 (1982).
809.30 Annotation
Because double jeopardy precludes retrial if appellate court finds conviction is not supported by sufficient evidence, court must decide claim of insufficiency even if there are other grounds for reversal that would not preclude retrial. State v. Ivy, 119 W (2d) 591, 350 NW (2d) 622 (1984).
809.30 Annotation
Court may grant extensions under this section for good cause. State v. Harris, 149 W (2d) 943, 440 NW (2d) 364 (1989).
809.30 Annotation
A defendant is incompetent to pursue postconviction relief when he or she is unable to assist counsel or make decisions committed by law to the defendant with a degree of rational reasoning. Process to be followed when competency issue arises discussed. State v. Debra A. E. 188 W (2d) 111, 523 NW (2d) 727 (Ct. App. 1994).
809.30 Annotation
If a defendant is represented by counsel, the defendant is statutorily barred from proceeding pro se during the pendency of an appeal. State v. Redmond, 203 W (2d) 13, 552 NW (2d) 115 (Ct. App. 1996).
809.30 Annotation
A criminal defendant may bring a motion under sub. (2) (h) for a new trial based on newly-discovered evidence. The defendant has the burden of establishing the 5 enumerated criteria by clear and convincing evidence. State v. Brunton, 203 W (2d) 195, 552 NW (2d) 452 (Ct. App. 1996).
809.30 Annotation
When a criminal appeal is taken from a plea bargain it brings the entire judgment before the appellate court. Where a plea bargain is negated the the proper disposition is to remand the cause for further proceedings on the original charges. State v. Briggs, 218 W (2d) 61, 579 NW (2d) 783 (Ct. App. 1998).
809.30 Annotation
The decision to appeal. Kempinen, WBB August, 1985.
809.30 Annotation
Sentence modification by Wisconsin trial courts. Kassel. 1985 WLR 195.
809.30 Annotation
The decision to appeal a criminal conviction: Bridging the gap between the obligations of trial and appellate counsel. 1986 WLR 399.
809.31
809.31
Rule (Release on bond pending seeking postconviction relief). 809.31(1)(1) A defendant convicted of a misdemeanor or felony who is seeking relief from a conviction and sentence of imprisonment or to the intensive sanctions program and who seeks release on bond pending a determination of a motion or appeal shall file in the trial court a motion seeking release.
809.31(2)
(2) The trial court shall promptly hold a hearing on the motion of the defendant, determine the motion by order and state the grounds for the order.
809.31(3)
(3) Release may be granted if the court finds that:
809.31(3)(a)
(a) There is no substantial risk the appellant will not appear to answer the judgment following the conclusion of postconviction proceedings;
809.31(3)(b)
(b) The defendant is not likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice;
809.31(3)(c)
(c) The defendant will promptly prosecute postconviction proceedings; and
809.31(3)(d)
(d) The postconviction proceedings are not taken for purposes of delay.
809.31(4)
(4) In making the determination on the motion, the court shall take into consideration the nature of the crime, the length of sentence and other factors relevant to pretrial release.
809.31(5)
(5) The defendant or the state may seek review of the order of the trial court by filing a petition in the court. The procedures in
s. 809.50 govern the petition.
809.31(6)
(6) The court ordering release shall require the defendant to post a bond in accordance with
s. 969.09 and may impose other terms and conditions. The defendant shall file the bond in the trial court.
809.31 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978);
1981 c. 390 s.
252;
1991 a. 39;
1997 a. 232.
809.31 Note
Judicial Council Committee's Note, 1978: Section 969.09 provides for release on bond pending appeal and the conditions of the bond. Section 969.01 (2) provides for bond in felony cases after conviction in the discretion of the trial court or by the Supreme Court or a justice thereof or the Court of Appeals or a judge thereof. Neither the statutes nor case law, however, establishes the standards for release or indicates whether the Supreme Court or Court of Appeals is reviewing the action of the trial court or acting de novo. This Rule is intended to meet these deficiencies. The standards for release are those included in the American Bar Association Criminal Justice Standards, Criminal Appeals, s. 2.5. [Re Order effective July 1, 1978]
809.31 Annotation
Petition for bail pending appeal discussed. State v. Whitty, 86 W (2d) 380, 272 NW (2d) 842 (1978).
809.31 Annotation
See note to 974.06, citing State v. Shumate, 107 W (2d) 460, 319 NW (2d) 834 (1982).
809.31 Annotation
Merits of underlying appeal may be considered by trial court in considering release pending appeal and by appellate court in determining whether immediate review of order denying release pending appeal is necessary. State v. Salmon, 163 W (2d) 369, 471 NW (2d) 286 (Ct. App. 1991).
809.31 Annotation
See note to 969.09, citing Dreske v. Wis. Department of Health and Social Services, 483 F Supp. 783 (1980).
809.32
809.32
Rule (No merit reports). 809.32(1)
(1) If an attorney appointed under
s. 809.30 or
ch. 977 is of the opinion that further appellate proceedings on behalf of the defendant would be frivolous and without any arguable merit within the meaning of Anders v. California,
386 U.S. 738 (1967), the attorney shall file with the court of appeals 3 copies of a brief in which is stated anything in the record that might arguably support the appeal and a discussion of why the issue lacks merit. The attorney shall serve a copy of the brief on the defendant and shall file a statement in the court of appeals that service has been made upon the defendant. The defendant may file a response to the brief within 30 days of service.
809.32(2)
(2) The attorney also shall file in the trial court a notice of appeal of the judgment of conviction and of any order denying a postconviction motion. The clerk of the trial court shall transmit the record in the case to the court pursuant to
s. 809.15. The no merit brief and notice of appeal must be filed within 180 days of the service upon the defendant of the transcript under
s. 809.30 (2) (g).
809.32(3)
(3) In the event the court of appeals finds that further appellate proceedings would be frivolous and without any arguable merit, the court of appeals shall affirm the judgment of conviction and the denial of any postconviction motion and relieve the attorney of further responsibility in the case. The attorney shall advise the defendant of the right to file a petition for review to the supreme court under
s. 809.62.
809.32(4)
(4) If a fully briefed appeal is taken to the court of appeals and the attorney is of the opinion that a petition for review in the supreme court under
s. 809.62 would be frivolous and without any arguable merit, the attorney shall advise the defendant of the reasons for this opinion and that the defendant has the right to file a petition for review. If requested by the defendant, the attorney shall file a petition satisfying the requirements of
s. 809.62 (2) (d) and
(f) and the defendant shall file a supplemental petition satisfying the requirements of
s. 809.62 (2) (a),
(b),
(c) and
(e). The petition and supplemental petition shall both be filed within 30 days of the date of the decision of the court of appeals. An opposing party may file a response to the petition and supplemental petition within 10 days of the service of the supplemental petition.
809.32 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 104 W (2d) xi (1981);
1981 c. 390 s.
252;
1983 a. 192; Sup. Ct. Order, 123 W (2d) xix (1985);
1987 a. 403 s.
256.
809.32 Annotation
Judicial Council Committee's Note, 1981: Subs. (3) and (4) are amended to refer properly to the petition for supreme court review of decisions of the court of appeals.
809.32 Annotation
Sub. (4) is amended to reflect the amendments to Rule 809.62 regulating the form, contents and length of a petition for review. If requested by the defendant, the attorney shall file with the supreme court a petition for review containing the statement of the case and the appendix required by Rule 809.62 (2) (d) and (f), as the attorney is in the best position to formulate the statement of the case and to provide the documents required for the appendix. The defendant shall file a supplement containing the statement of the issues presented for review, the table of contents, the statement of the criteria relied upon for a review and the argument amplifying the reasons relied on to support the petition as required by Rule 809.62 (2) (a), (b), (c) and (e). The rule does not prohibit the defendant from including a supplement to the statement of the case provided by the attorney.
809.32 Annotation
The rule requires that both the petition and supplemental petition be filed within 30 days of the date of the decision of the court of appeals. As with all petitions for review, the opposing party may file a response to the petition and supplemental petition within 10 days. The amendment provides that the 10 days begins to run from the service of the supplemental petition. [Re Order effective Jan. 1, 1982]
809.32 Annotation
This rule is constitutional although it does not secure indigent convict the right to counsel in preparing petition for review. State v. Mosley, 102 W (2d) 636, 307 NW (2d) 200 (1981).
809.32 Annotation
"No-merit brief" requirement under (1) does not deny right to counsel. State ex rel. McCoy v. Appeals Ct., 137 W (2d) 90, 403 NW (2d) 449 (1987).
809.32 Annotation
Appellate counsel's closing of a file because of no merit without the defendant knowing of the right to disagree and compel a no merit report is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State, 183 W (2d) 587, 516 NW (2d) 362 (1994).
809.32 Annotation
The no merit appeal procedure does not apply to appeals regarding terminations of parental rights under s. 809.107. Gloria A. v. State, 195 W (2d) 268, 536 NW (2d) 396 (Ct. App. 1995).
809.32 Annotation
Read together, s. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review, provided counsel does not determine the appeal to be without merit. Where counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy, 201 W (2d) 246, 548 NW (2d) 45 (1996).
809.32 Annotation
This section comports with constitutional requirements. McCoy v. Court of Appeals, 486 US 429 (1988).
CHAPTERS 48, 51, 55 AND 799, TRAFFIC REGULATION, MUNICIPAL ORDINANCE VIOLATION, AND
MISDEMEANOR CASES APPEAL PROCEDURE
IN COURT OF APPEALS
809.40
809.40
Rule (Applicability). 809.40(1)
(1) An appeal to the court of appeals from a judgment or order in a misdemeanor case or a
ch. 48,
51,
55 or
938 case, or a motion for postconviction relief in a misdemeanor case must be initiated within the time periods specified in
s. 808.04 and is governed by the procedures specified in
ss. 809.30 to
809.32.
809.40(1m)
(1m) Subsection (1) does not apply to an appeal from an order denying a petition under
s. 48.375 (7), which is governed by the procedures specified in
s. 809.105, or to an appeal from an order or judgment under
s. 48.43, which is governed by the procedures specified in
s. 809.107.
809.40(2)
(2) An appeal to the court of appeals from a judgment or order in a
ch. 799, traffic regulation or municipal ordinance violation case must be initiated within the time period specified in
s. 808.04, and is governed by the procedures specified in
ss. 809.01 to
809.26 and
809.50 to
809.85, unless a different procedure is expressly provided in
ss. 809.41 to
809.43.
809.40(3)
(3) Any civil appeal to the court of appeals under
sub. (1) or
(2) is subject to the docketing statement requirement of
s. 809.10 (1) (a) and may be eligible for the expedited appeals program in the discretion of the court.
809.40 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978);
1979 c. 32 s.
92 (16); Sup. Ct. Order, 92 W (2d) xiii (1979);
1979 c. 175 s.
53;
1979 c. 355;
1981 c. 390 s.
252; Sup. Ct. Order, 130 W (2d) xi xix ((1986); Sup. Ct. Order, 131 W (2d) xv (1986); Sup. Ct. Order, 136 W (2d) v, xxv ((1987);
1991 a. 263;
1993 a. 395;
1995 a. 77.
809.40 Note
Judicial Council Committee's Note, 1978: Rule 809.40 establishes the time periods for appealing in a misdemeanor case or Chapter 48, 51 or 55 case or seeking postconviction relief in a misdemeanor case pursuant to s. 974.02 (1). It also makes the procedures set forth in Rules 809.30 to 809.32 apply to these types of cases.
809.40 Annotation
Rules 809.41 to 809.43 establish special procedures for appeals that may be heard by one appellate judge. The appeal time periods in Chapter 299, traffic regulation and municipal ordinance violation cases, are found in s. 808.04. [Re Order effective July 1, 1978]
809.40 Note
Judicial Council Committee's Note, 1979: Sub. (2) is repealed and recreated to place into it for purposes of clarity the appropriate reference in Chapter 808 containing the appeal time periods for Chapter 799, traffic regulations, and municipal ordinance violations cases. No substantive change is intended. [Re Order effective Jan. 1, 1980]
809.41
809.41
Rule (Motion for 3-judge panel or hearing in county of origin). 809.41(1)(1) If an appellant or a petitioner requesting the court to exercise its supervisory jurisdiction or its original jurisdiction to issue prerogative writs or its appellate jurisdiction to grant petitions for leave to appeal desires the matter to be decided by a 3-judge panel, the appellant or petitioner shall file with the copy of the notice of appeal required by
s. 809.10 (1) (a) or with the petition requesting the court to exercise its supervisory, original or appellate jurisdiction a motion for a 3-judge panel. Any other party must file a motion under this rule for a 3-judge panel within 10 days of service of the notice of appeal or with the response to the petition. The failure to file a motion under this rule waives the right to request the matter to be decided by a 3-judge panel. A motion for a 3-judge panel in a case in which the state is a party shall also be served upon the attorney general. The attorney general may file a response to the motion within 7 days of service.
809.41(2)
(2) The chief judge may change or modify his or her decision on a motion that the matter be decided by a 3-judge panel at any time prior to a decision on the merits of the appeal or petition.
809.41(3)
(3) Whether or not a motion for a 3-judge panel has been filed, the chief judge may order that an appeal or petition be decided by a 3-judge panel at any time prior to a decision on the merits of the appeal or petition.
809.41(4)
(4) If an appellant desires that the appeal be heard in the county where the case or action originated under
s. 752.31 (3), the appellant shall file with the copy of the notice of appeal required by
s. 809.10 (1) (a) a motion requesting a hearing in the county of origin. Any other party must file a motion requesting a hearing in the county of origin within 10 days of service of the notice of appeal. The failure to file a motion under this rule waives the right to request the appeal be heard in the county where the case or action originated.
809.41 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii (1979); Sup. Ct. Order, 104 W (2d) xi (1981); Sup. Ct. Order 151 W (2d) xvii (1989);
1993 a. 486.
809.41 Note
Judicial Council Committee's Note, 1979: Sub. (3) is created to clarify that the chief judge of the Court of Appeals has the authority to order that an appeal be decided by a 3-judge panel after it has initially been assigned to a single Court of Appeals judge. This authority of the chief judge may be exercised at any time prior to a decision on the merits of the appeal by the single Court of Appeals judge to whom the appeal was originally assigned. [Re Order effective Jan. 1, 1980]
809.41 Note
Judicial Council Committee's Note, 1981: Rule 809.41 is amended to harmonize with ch. 192, Laws of 1979.
809.41 Annotation
Sub. (1) is amended to apply the procedure for requesting a 3-judge panel for appeals to other proceedings in the types of case specified in s. 752.31 (2). The rule is also amended to require that if the motion for 3-judge panel is in a case in which the state is a party the motion must be served upon the attorney general as well as all persons of record. If the district attorney files the motion for 3-judge panel, the district attorney must serve the motion on the attorney general. The attorney general is given 7 days to respond to the motion.
809.41 Annotation
The rule is further amended to require that the motion for 3-judge panel be filed with the copy of the notice of appeal required to be sent to the clerk of the court of appeals under Rule 809.10 (1) (a) and not with the original notice of appeal filed with the clerk of the circuit court.
809.41 Annotation
Subs. (2) and (3) are amended to clarify that their provisions may apply to both an appeal and a petition requesting the exercise of supervisory jurisdiction or original jurisdiction to issue a prerogative writ.
809.41 Annotation
Section 752.31, as amended by ch. 192, Laws of 1979, provides for a hearing in the county of origin for appeals but not for other proceedings such as a petition for supervisory writ or original jurisdiction prerogative writ. Sub. (4) is created to set out in a separate subsection of Rule 809.41 the procedure to request that an appeal be heard in the county where a case or action originated as authorized under sub. 752.31 (3). The creation of this separate subsection makes no substantive change in the prior procedure that was contained in Rule 809.41 (1). The rule requires that the motion for hearing in county of origin be filed with the copy of the notice of appeal required to be sent to the clerk of the court of appeals under Rule 809.10 (1) (a).
809.41 Annotation
Rule 809.41 is also amended to clarify that the appeal or petition is decided rather than heard, as oral argument may not occur in all matters filed in the court of appeals. [Re Order effective Jan. 1, 1982]
809.42
809.42
Rule (Waiver of oral argument). The appellant and respondent in an appeal under
s. 752.31 (2) may waive oral argument, subject to approval of the court.
809.42 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii (1979).
809.42 Note
Judicial Council Committee's Note, 1979: This rule is amended to delete language authorizing an appellant and respondent to waive the filing of briefs in an appeal to the Court of Appeals. The Court of Appeals as a consistent policy does not allow the waiving of filing of briefs. The rule is brought into conformity with that policy. [Re Order effective Jan. 1, 1980]
809.43
809.43
Rule (Number of briefs). 809.43(1)
(1) A person who files a brief or appendix shall file 8 copies with the court, or such other number as the court directs, and serve 3 copies on each party.
809.43(2)
(2) A person who is found indigent under
s. 814.29 and files a brief or appendix shall file the original and 2 copies with the court and serve one copy on each party.
809.43 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 164 W (2d) xxix (1991).
DISCRETIONARY JURISDICTION PROCEDURE IN COURT OF APPEALS
