808.075(3)
(3) In a case not appealed under
s. 809.30, the circuit court retains the power to act on all issues until the record has been transmitted to the court of appeals. Thereafter, the circuit court may act only as provided in
subs. (1) and
(4).
808.075(4)
(4) The circuit court may act as to the following despite the pendency of an appeal:
808.075(4)(b)4.
4. Commitment, conditional release, recommitment and discharge under
s. 971.17 of a person found not guilty by reason of mental disease or defect.
808.075(4)(d)4.
4. Revision of judgment or order for child support, maintenance payments or family support payments under
s. 767.32 or
767.51.
808.075(4)(d)5.
5. Order for temporary maintenance, temporary child support or for suit money, counsel fees and disbursements in the appellate court under
s. 767.39.
808.075(4)(d)6.
6. Property division, where the court has expressly or impliedly reserved jurisdiction, provided the court does not revise or modify its final division of property.
808.075(4)(e)1.
1. Any matter, unless the appellate court directs the trial court not to act on specific issues or the trial court declines to act because the matter directly affects the issues on appeal.
808.075(4)(g)7.
7. Commitment, conditional release, recommitment and discharge under
s. 971.17 of a person found not guilty by reason of mental disease or defect.
808.075(5)
(5) Notwithstanding the limitations of this section, any party may petition the appellate court for remand to the circuit court for action upon specific issues.
808.075(6)
(6) In addition to
sub. (5), the appellate court may remand the record to the circuit court for additional proceedings while the appeal is pending.
808.075(7)
(7) Upon completion of an action taken by the circuit court under
sub. (1),
(4),
(5) or
(6) of this section, the clerk shall send a copy of the judgment or order to the appellate court.
808.075 History
History: Sup. Ct. Order, 146 W (2d) xiii (1988);
1989 a. 86;
1993 a. 16,
446,
479,
481;
1995 a. 38,
73,
77,
275.
808.075 Note
Judicial Council Note, 1988: In In re Marriage of Hengel v. Hengel,
120 Wis. 2d 522, 355 N. W. 2d 846 (Ct. App. 1984), the court of appeals held that since there is no specific statutory exception, the trial court had no competence to enter an order requiring the husband to contribute to his wife's attorney's fees for representation in the trial court after a notice of appeal had been filed. Section 808.075 is created to specify the actions that may be taken in circuit court after a notice of appeal has been filed in cases appealed under s. 809.30 and after transmittal of the record to an appellate court in other cases.
808.075 Annotation
Matters affecting trusts and estates have historically been treated as a series of special proceedings, and the trial court is charged with ongoing supervision and administrative duties affecting such matters. Because of the ongoing involvement of the trial court, sub. (4) (e) reserves full competence to act, unless it is determined that competence should be restricted as to specific issues. [Re Order effective Jan. 1, 1989]
808.075 Annotation
See note to 808.07, citing Community Nat. Bank v. O'Neill, 157 W (2d) 244, 458 NW (2d) 385 (Ct. App. 1990).
808.075 Annotation
See note to 805.16 citing Schmidt v. Smith, 162 W (2d) 363, 469 NW (2d) 855 (Ct. App. 1991).
808.075 Annotation
When court of appeals remands an appeal to the trial court for Girouard determination, court of appeals has jurisdiction to review that trial court decision without need for filing second notice of appeal. State v. Jacobus, 167 W (2d) 230, 481 NW (2d) 642 (Ct. App. 1992). See also note to 814.29 citing Girouard v. Jackson Circuit Ct. 155 W (2d) 148, 454 NW (2d) 792 (1990).
808.08
808.08
Further proceedings in trial court. When the record and remittitur are received in the trial court:
808.08(1)
(1) If the trial judge is ordered to take specific action, the judge shall do so as soon as possible.
808.08(2)
(2) If a new trial is ordered, the trial court, upon receipt of the remitted record, shall place the matter on the trial calendar.
808.08(3)
(3) If action or proceedings other than those mentioned in
sub. (1) or
(2) is ordered, any party may, within one year after receipt of the remitted record by the clerk of the trial court, make appropriate motion for further proceedings. If further proceedings are not so initiated, the action shall be dismissed except that an extension of the one-year period may be granted, on notice, by the trial court, if the order for extension is entered during the one-year period.
808.08 History
History: 1977 c. 187.
808.08 Annotation
"Further proceedings" under 801.58 (7) and 808.08 (3) have same definition. State ex rel. Ondrasek v. Circuit Ct., 133 W (2d) 177, 394 NW (2d) 912 (Ct. App. 1986).
808.09
808.09
Reversal, affirmance or modification of judgment. Upon an appeal from a judgment or order an appellate court may reverse, affirm or modify the judgment or order as to any or all of the parties; may order a new trial; and, if the appeal is from a part of a judgment or order, may reverse, affirm or modify as to the part appealed from. In all cases an appellate court shall remit its judgment or decision to the court below and thereupon the court below shall proceed in accordance with the judgment or decision.
808.09 History
History: 1977 c. 187.
808.09 Annotation
Court of Appeals may not direct circuit court to enter judgment of conviction of lesser included offense when jury verdict of guilty on greater offense is reversed for insufficiency of evidence and jury was not instructed on lesser included offense. State v. Myers, 158 W (2d) 356, 461 NW (2d) 777 (1990).
