809.25(2)(a)3.
3. For comparing for certification of a copy of a record, entry or paper, when the copy is furnished by the person requesting its certification, 25 cents for each page.
809.25(2)(a)4.
4. For a certificate and seal, $1, except for an attorney's certificate of good standing, $3.
809.25(2)(b)
(b) The state is exempt from payment of the fees set forth in
par. (a) 1. to
4., except that the clerk is not obligated to supply the state with free copies of opinions.
809.25(2)(c)
(c) The clerk of the court of appeals may refuse to file, record, certify, or render any other service without prepayment of the fees established by this section.
809.25(3)(a)(a) If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees, and reasonable attorney fees under this section. A motion for costs, fees, and attorney fees under this subsection shall be filed no later than the filing of the respondent's brief or, if a cross-appeal is filed, no later than the filing of the cross-respondent's brief. This subsection does not apply to appeals or cross-appeals under
s. 809.107,
809.30, or
974.05.
809.25(3)(b)
(b) The costs, fees and attorney fees awarded under
par. (a) may be assessed fully against the appellant or cross-appellant or the attorney representing the appellant or cross-appellant or may be assessed so that the appellant or cross-appellant and the attorney each pay a portion of the costs, fees and attorney fees.
809.25(3)(c)
(c) In order to find an appeal or cross-appeal to be frivolous under
par. (a), the court must find one or more of the following:
809.25(3)(c)1.
1. The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
809.25(3)(c)2.
2. The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
809.25 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981);
1981 c. 316,
317;
1981 c. 390 ss.
220,
252;
1985 a. 29; Sup. Ct. Order, 151 Wis. 2d xvii (1989);
1995 a. 224;
1997 a. 254;
1999 a. 85; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii;
2003 a. 33.
809.25 Note
Judicial Council Committee's Note, 1978: Most of the provisions of former ss. 251.23 and 251.90 are retained. The major change is to provide that execution for costs in the Court of Appeals is to be had in the trial court in accordance with Rule 806.16 rather than in the Court of Appeals. The Judicial Council did not review the adequacy of the fees and thus made no recommendations on them. It is suggested, however, that many of the fees appear to be out of date and should be revised. This should be done in connection with a general review of fees in all courts. [Re Order effective July 1, 1978]
809.25 Note
Judicial Council Committee's Note, 1979: Sub. (1) (a) and (d), which governs costs that are allowed in an appeal to the Court of Appeals or a review by the Supreme Court, have been amended for purposes of clarification.
809.25 Annotation
A provision has been added to clarify that costs are taxed by the clerk in the Court of Appeals irrespective of the filing of a petition for review in the Supreme Court. In the event of review by the Supreme Court, a provision has been added specifically stating that costs are allowed against a petitioner in a case before the Supreme Court when the decision of that court affirms a judgment of the Court of Appeals.
809.25 Annotation
An additional clarifying provision has been added allowing costs against a respondent in a case before the Supreme Court when the petitioner before the Supreme Court has achieved reversal of a judgment of the Court of Appeals. The provision further states that the costs that were allowed when the case was originally decided by the Court of Appeals are canceled. [Re Order effective Jan. 1, 1980]
809.25 Note
Judicial Council Committee's Note, 1981: Sub. (2) (a) 1. is amended to correct the reference from a petition to appeal to a petition for review. The supreme court reviews the decisions of the court of appeals. [Re Order effective Jan. 1, 1982]
809.25 Note
Judicial Council Note, 2001: The 7-day time limit in sub. (1) (c) was changed to 11 days. Please see the comment to s. 808.07 (6) concerning time limits. [Re Order No. 00-02 effective July 1, 2001]
809.25 Annotation
An appeal was frivolous when an assertion of trial court error was without any reasonable basis in law or equity and there was no argument that existing law should have been extended, modified, or reversed. In Matter of Estate of Koenigsmark,
119 Wis. 2d 394,
351 N.W.2d 169 (Ct. App. 1984).
809.25 Annotation
Tax protesters appealing without counsel were properly assessed costs under sub. (3) (c) 2. Tracy v. Department of Revenue,
133 Wis. 2d 151,
394 N.W.2d 756 (Ct. App. 1986).
809.25 Annotation
Restricting access to courts as a sanction for a frivolous action was appropriate when the order was narrowly tailored to balance the interests of public access to courts, res judicata, and the public's right not to have frivolous litigation be a drain on public resources. Minniecheske v. Griesbach,
161 Wis. 2d 743,
468 N.W.2d 760 (Ct. App. 1991).
809.25 Annotation
Asking the court of appeals to reweigh the testimony of witnesses and to reach a conclusion regarding credibility contrary to that reached by a trial judge was frivolous. Lessor v. Wangelin,
221 Wis. 2d 659,
586 N.W.2d 1 (Ct. App. 1998),
97-2974.
809.25 Annotation
A frivolous appeal filed by a non-lawyer results in the same harm as if it were filed by a lawyer. It would not be fair or logical to say that had a lawyer filed the appeal costs would have been awarded but to deny recovery because the appeal was presented by a pro se litigant. Holz v. Busy Bees Contracting, Inc.
223 Wis. 2d 598,
589 N.W.2d 633 (Ct. App. 1998),
98-1076.
809.25 Annotation
While only an appellate court can find an appeal frivolous, the case may be remanded to the circuit court to determine the amount of attorney fees to be awarded. Lucarelli v. Vilas County, 2000 WI App 157,
238 Wis. 2d 84,
616 N.W.2d 153,
99-2827.
809.25 Annotation
In addition to an order to pay the respondent's costs, fees, and attorney fees, an appellant whose appeal was found frivolous after his brief was stricken for being offensive, scurrilous, and inappropriate was barred from filing any future proceedings in the court of appeals and the circuit court arising from, relating to, or involving the respondents. Puchner v. Hepperla, 2001 WI App 50,
241 Wis. 2d 545,
625 N.W.2d 609,
98-2853.
809.25 Annotation
The circuit court's award of fees to the respondent due to the appellant's overlitigating by filing multiple frivolous issues on appeal, in violation of the circuit court's order, was not prevented by a court of appeals finding that no fees could be awarded under sub. (3). Zhang v. Yu, 2001 WI App 267,
248 Wis. 2d 913,
637 N.W.2d 754,
00-3237.
809.25 Annotation
In order to be awarded costs, fees, and reasonable attorney fees, the moving party must prove that the entire appeal presented was frivolous. If an argument advanced has arguable merit, then the appeal is not frivolous. Baumeister v. Automated Products, Inc. 2004 WI 148,
277 Wis. 2d 21,
690 N.W.2d 1,
02-1003 809.25 Annotation
The trial court is without authority to order the payment of frivolous costs and fees associated with an appeal. Morters v. Aiken & Scoptur, 2006 WI App 46,
289 Wis. 2d 833,
712 N.W.2d 71,
05-0703.
809.26
809.26
Rule (Remittitur). 809.26(1)(1) The clerk of the court of appeals shall transmit to the circuit court the judgment and decision or order of the court and the record in the case filed pursuant to
s. 809.15 31 days after the filing of the decision or order of the court, or as soon thereafter as practicable. If a petition for review is filed pursuant to
s. 809.62, the transmittal is stayed until the supreme court rules on the petition. If a motion for reconsideration is filed under
s. 809.24, the transmittal is stayed until the court files an order denying the motion, or files an amended decision or order, and the subsequent expiration of any period for filing a petition for review.
809.26(2)
(2) If the supreme court grants a petition for review of a decision of the court of appeals, the supreme court upon filing its decision shall transmit to the trial court the judgment and opinion of the supreme court and the complete record in the case unless the case is remanded to the court of appeals with specific instructions.
809.26 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979);
1981 c. 390 s.
252; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No.
02-01, 2002 WI 120, 255 Wis. 2d xiii.
809.26 Note
Judicial Council Committee's Note, 1978: Former s. 817.35 is embodied in this section except that the time for issuance of the remittitur is reduced from 60 to 31 days. [Re Order effective July 1, 1978]
809.26 Note
Judicial Council Committee's Note, 1979: This section is amended by creating a sub. (2) that specifically authorizes the Supreme Court after filing its decision in the review of a decision from the Court of Appeals to remit directly to the trial court the complete record of the case without the necessity of returning the case to the Court of Appeals for remittitur to the trial court. The only exception to this new procedure will occur when the Supreme Court remands a case to the Court of Appeals with some specific instructions that the Court of Appeals is required to follow. [Re Order effective Jan. 1, 1980].
809.26 Note
Judicial Council Note, 2002: Subsection (1) is amended to permit the clerk of courts some flexibility in the 31-day remittitur deadline to accommodate workload fluctuation. By Supreme Court Order 00-02, 2001 WI 39, "within" was added immediately preceding "31 days." The Judicial Council had not intended to suggest changing the substance of existing time parameters for remittitur, when it petitioned for that amendment, but merely proposed the additional word for ease of reading. Since that amendment, it has been argued that the addition of "within" permits remittitur prior to the expiration of the 31-day period. However, the 31-day period coincides with the time limit for filing a petition for review. Absent stipulation among the parties that no petition for review will be filed, remittitur should not occur before the expiration of the petition for review deadline. [Re Order No. 02-01 effective January 1, 2003]
809.26 Annotation
An appellate court's jurisdiction ceases upon remittitur in the absence of inadvertence, fraud, or void judgment. The inadvertence exception applies to the act of remitting the record itself, which must be inadvertently done. State ex rel. Fuentes v. Court of Appeals,
225 Wis. 2d 446,
593 N.W.2d 48 (1999),
98-1534.
APPEAL PROCEDURE IN COURT OF APPEALS IN
CRIMINAL AND CH. 48, 51, 55, AND 938 CASES
809.30
809.30
Rule (Appeals in criminal, ch. 48, 51, 55, and 938 cases). 809.30(1)(1)
Definitions. In this subchapter:
809.30(1)(a)
(a) "Final adjudication" means the entry of a final judgment or order by the circuit court in a
ch. 48,
51,
55, or
938 case, other than a termination of parental rights case under
s. 48.43 or a parental consent to abortion case under
s. 48.375 (7).
809.30(1)(b)1.
1. A defendant seeking postconviction relief in a criminal case.
809.30(1)(b)2.
2. A party, other than the state, seeking postdisposition relief in a case under
ch. 48, other than a termination of parental rights case under
s. 48.43 or a parental consent to abortion case under
s. 48.375 (7).
809.30(1)(b)3.
3. A party, other than the state, seeking postdisposition relief in a case under
ch. 938.
809.30(1)(b)4.
4. A subject individual or ward seeking postdisposition relief in a case under
ch. 51 or
55.
809.30(1)(d)
(d) "Postdisposition relief" means an appeal or a motion for postdisposition relief from a circuit court's final adjudication.
809.30(1)(e)
(e) "Prosecutor" means a district attorney, corporation counsel, or other attorney authorized by law to prosecute a criminal case or a case under
ch. 48,
51,
55, or
938.
809.30(1)(f)
(f) "Sentencing" means the imposition of a sentence, a fine, or probation in a criminal case. In a
ch. 980 case, the term means the entry of an order under
s. 980.06.
809.30(2)
(2) Appeal; postconviction or postdisposition motion. 809.30(2)(a)(a) Appeal procedure; counsel to continue. A person seeking postconviction relief in a criminal case; a person seeking postdisposition relief in a case under
ch. 48 other than a termination of parental rights case under
s. 48.43 or a parental consent to abortion case under
s. 48.375 (7); or a person seeking postdisposition relief in a case under
ch. 51,
55, or
938 shall comply with this section. Counsel representing the person at sentencing or at the time of the final adjudication shall continue representation by filing a notice under
par. (b) if the person desires to pursue postconviction or postdisposition relief unless counsel is discharged by the person or allowed to withdraw by the circuit court before the notice must be filed.
809.30(2)(b)
(b) Notice of intent to pursue postconviction or postdisposition relief. Within 20 days after the date of sentencing or final adjudication, the person shall file in circuit court and serve on the prosecutor and any other party a notice of intent to pursue postconviction or postdisposition relief. The notice shall include all of the following:
809.30(2)(b)2.
2. An identification of the judgment or order from which the person intends to seek postconviction or postdisposition relief and the date on which the judgment or order was entered.
809.30(2)(b)3.
3. The name and address of the person and his or her trial counsel.
809.30(2)(b)4.
4. Whether the person's trial counsel was appointed by the state public defender and, if so, whether the person's financial circumstances have materially improved since the date on which his or her indigency was determined.
809.30(2)(b)5.
5. Whether the person requests the state public defender to appoint counsel for purposes of postconviction or postdisposition relief.
809.30(2)(b)6.
6. Whether a person who does not request the state public defender to appoint counsel will represent himself or herself or will be represented by retained counsel. If the person has retained counsel to pursue postconviction or postdisposition relief, counsel's name and address shall be included.
809.30(2)(c)
(c) Clerk to send materials. Within 5 days after a notice under
par. (b) is filed, the clerk of circuit court shall:
809.30(2)(c)1.
1. If the person requests representation by the state public defender for purposes of postconviction or postdisposition relief, send to the state public defender's appellate intake office a copy of the notice that shows the date on which it was filed or entered, a copy of the judgment or order specified in the notice that shows the date on which it was filed or entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript has been filed with the clerk of circuit court.
809.30(2)(c)2.
2. If the person does not request representation by the state public defender, send or furnish to the person, if appearing without counsel, or to the person's attorney if one has been retained, a copy of the judgment or order specified in the notice that shows the date on which it was filed or entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript has been filed with the clerk of circuit court.
809.30(2)(d)
(d) Indigency redetermination. Except as provided in this paragraph, whenever a person whose trial counsel is appointed by the state public defender files a notice under
par. (b) requesting public defender representation for purposes of postconviction or postdisposition relief, the prosecutor may, within 5 days after the notice is served and filed, file in the circuit court and serve upon the state public defender a request that the person's indigency be redetermined before counsel is appointed or transcripts are requested. This paragraph does not apply to a child or juvenile who is entitled to be represented by counsel under
s. 48.23 or
938.23.
809.30(2)(e)
(e) State public defender appointment of counsel; transcript and circuit court case record request. Within 30 days after the state public defender appellate intake office receives the materials from the clerk of circuit court under
par. (c), the state public defender shall appoint counsel for the person and request a transcript of the reporter's notes and a copy of the circuit court case record, except that if the person's indigency must first be determined or redetermined the state public defender shall do so, appoint counsel, and request transcripts and a copy of the circuit court case record within 50 days after the state public defender appellate intake office receives the material from the clerk of circuit court under
par. (c).
809.30(2)(f)
(f) Person not represented by public defender; transcript and circuit court case record request. A person who does not request representation by the state public defender for purposes of postconviction or postdisposition relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 30 days after filing a notice under
par. (b). A person who is denied representation by the state public defender for purposes of postconviction or postdisposition relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 90 days after filing a notice under
par. (b).
809.30(2)(fm)
(fm) Transcript and circuit court case record request in chs. 48 and 938 proceedings. A child or juvenile who has filed a notice of intent to pursue relief from a judgment or order entered in a
ch. 48 or
938 proceeding shall be furnished at no cost a transcript of the proceedings or as much of the transcript as is requested, and may request a copy of the circuit court case record. To obtain the transcript and circuit court case record at no cost, an affidavit must be filed stating that the person who is legally responsible for the child's or juvenile's care and support is financially unable or unwilling to purchase the transcript and a copy of the circuit court case record.
809.30(2)(g)
(g) Filing and service of transcript and circuit court case record. 809.30(2)(g)1.1. The clerk of circuit court shall serve a copy of the circuit court case record on the person within 60 days after receipt of the request for the circuit court case record.
809.30(2)(g)2.
2. The court reporter shall file the transcript with the circuit court and serve a copy of the transcript on the person within 60 days of the request for the transcript. Within 20 days after the request for a transcript of postconviction or postdisposition proceedings brought under
sub. (2) (h), the court reporter shall file the original with the circuit court and serve a copy of that transcript on the person. The reporter may seek an extension under
s. 809.11 (7) for filing and serving the transcript.
809.30(2)(h)
(h) Notice of appeal, postconviction or postdisposition motion. The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal or motion seeking postconviction or postdisposition relief within 60 days after the later of the service of the transcript or circuit court case record. The person shall file a motion for postconviction or postdisposition relief before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised. A postconviction or postdisposition motion under this section may not be accompanied by a notice of motion and is made when filed. A notice of appeal filed under this section shall conform to the requirements set forth in
s. 809.10.
809.30(2)(i)
(i) Order determining postconviction or postdisposition motion. Unless an extension is requested by a party or the circuit court and granted by the court of appeals, the circuit court shall determine by an order the person's motion for postconviction or postdisposition relief within 60 days after the filing of the motion or the motion is considered to be denied and the clerk of circuit court shall immediately enter an order denying the motion.
809.30(2)(j)
(j) Appeal from judgment and order. The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal from the judgment of conviction and sentence or final adjudication and, if necessary, from the order of the circuit court on the motion for postconviction or postdisposition relief within 20 days of the entry of the order on the postconviction or postdisposition motion. A notice of appeal filed under this section shall conform to the requirements set forth in
s. 809.10. Appeals in cases under
chs. 48,
51,
55, and
938 are subject to the docketing statement requirements of
s. 809.10 (1) (d) and may be eligible for the expedited appeals program in the discretion of the court.
809.30(2)(k)
(k) Transmittal of record. Except as otherwise provided in
ss. 809.14 (3) and
809.15 (4) (b) and
(c), the clerk of circuit court shall transmit the record on appeal to the court of appeals as soon as prepared but in no event more than 40 days after the filing of the notice of appeal. Subsequent proceedings in the appeal are governed by the procedures for civil appeals.
809.30(3)
(3) Appeals by state or other party; appointment of counsel. In a case in which the state of Wisconsin, the representative of the public, any other party, or any person who may appeal under
s. 51.13 (5),
51.20 (15), or
55.20 appeals and the person who is the subject of the case or proceeding is a child or claims to be indigent, the court shall refer the person who is the subject of the case or proceeding to the state public defender for the determination of indigency and the appointment of legal counsel under
ch. 977.
809.30(4)
(4) Motion to withdraw as appointed counsel. 809.30(4)(a)(a) If postconviction, postdisposition, or appellate counsel appointed for the person under
ch. 977 seeks to withdraw from the case, counsel shall serve a motion to withdraw upon the person and upon the appellate division intake unit in the Madison appellate office of the state public defender. If the motion is filed before the notice of appeal is filed, the motion shall be filed in circuit court. If the motion is filed after a notice of appeal has been filed, the motion shall be filed in the court of appeals. Service of the motion to withdraw on the state public defender is not required when the motion is filed by an assistant state public defender or when a no-merit report is filed with the motion.
809.30(4)(b)
(b) Within 20 days after receipt of the motion under
par. (a), the state public defender shall determine whether successor counsel will be appointed for the person and shall notify the court in which the motion was filed of the state public defender's determination.
809.30(4)(c)
(c) Before determining the motion to withdraw, the court shall consider the state public defender's response under
par. (b) and whether the person waives the right to counsel.
809.30(4)(d)
(d) When the motion to withdraw is filed in circuit court, appointed counsel shall prepare and serve a copy of the order determining counsel's motion to withdraw upon the person and the appellate division intake unit in the Madison appellate office of the state public defender within 14 days after the court's determination.
809.30 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981);
1981 c. 390 s.
252; Sup. Ct. Order, 112 Wis. 2d xvii (1985); Sup. Ct. Order, 123 Wis. 2d xi (1985);
1985 a. 332; Sup Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order, 161 Wis. 2d xiii (1991); Sup. Ct. Order No.
93-19, 179 Wis. 2d xxiii (1994);
1993 a. 16,
395,
451;
1995 a. 77; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii;
2001 a. 16; Sup. Ct. Order No.
02-01, 2002 WI 120, 255 Wis. 2d xiii;
2005 a. 264,
434.
809.30 Note
Judicial Council Committee's Note, 1978: Many changes are made in prior practice in criminal cases and in protective placement, juvenile and mental commitment cases. Under the former procedure counsel, usually the State Public Defender appointed by the Supreme Court, was required to order a transcript, wait for its preparation, review it, present to the trial court by a post-trial motion any issues which the defendant desired to raise on appeal even if the issue had been presented to and decided by the court during the trial, [see State v. Charette,
51 Wis. 2d 531,
187 N.W.2d 203 (1971) and State v. Wuensch,
69 Wis. 2d 467,
230 N.W.2d 665 (1975)], and after the court ruled on the motion, appeal both the original conviction and the denial of the post-trial motion to the Supreme Court. Often a year or more elapsed between the sentencing of the defendant and the docketing of his appeal in the Supreme Court. This delay, combined with the delay in the Supreme Court caused by its backlog, often resulted in an appeal not being decided by the Supreme Court until two or three years after conviction.
809.30 Annotation
The procedures in this section are designed to expedite the entire process by putting time limits on each step and by eliminating the necessity of each issue being presented twice to the trial court.
809.30 Annotation
The term "postconviction relief", as used in this Rule, includes new trial, reduction of sentence and any other type of relief which the trial court is authorized to give, other than under s. 974.06.
809.30 Annotation
Extensions of time for taking various steps under this section can be granted by the court of appeals under Rule 809.82. [Re Order effective July 1, 1978]
809.30 Note
Judicial Council Committee's Note, 1979: Sub. (1) (h) is amended to increase from 10 to 20 days the period for a defendant to file a notice of appeal after entry of a trial court's order denying postconviction relief. It is sometimes difficult to meet the present 10-day requirement for filing an appeal under this subsection due to the delays that may occur in the prompt delivery by mail of the order of the trial court on a motion for postconviction relief. Increasing the time period by 10 days does not unduly lengthen the appellate process for determination of an appeal on its merits. [Re Order effective Jan. 1, 1980]
809.30 Note
Judicial Council Committee's Note, 1981: Sub. (1) (e) is amended to increase from 40 to 60 days the period for the court reporter to complete and serve a copy of the transcript on the defendant and sub. (1) (f) is amended to increase from 30 to 60 days the period for the defendant to either file a notice of appeal or motion seeking postconviction relief. The previous time periods were often insufficient for preparation of the transcript and for review of the transcript and record by the defendant determining which, if any, postconviction proceedings to commence.
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.
