972.11 Annotation Challenge to the admissibility of boots on the ground that the victim did not properly identify the same was devoid of merit, where it was stipulated that the child said they "could be" the ones she saw, for her lack of certitude did not preclude admissibility, but went to the weight the jury should give to her testimony. Howland v. State, 51 W (2d) 162, 186 NW (2d) 319.
972.11 Annotation The state need not introduce evidence of a confession until after defendant testifies and gives contradictory testimony. Ameen v. State, 51 W (2d) 175, 186 NW (2d) 206.
972.11 Annotation Testimony of an accomplice who waived her privilege is admissible even though she had not been tried or granted immunity. State v. Wells, 51 W (2d) 477, 187 NW (2d) 328.
972.11 Annotation Where counsel fails to state the purpose of a question to which objection is sustained on grounds of immateriality, the court may exclude the evidence. State v. Becker, 51 W (2d) 659, 188 NW (2d) 449.
972.11 Annotation Where the evidence was in conflict as to whether a substance found in defendant's possession was heroin, the judge cannot take judicial notice of other sources without proper notice to the parties. State v. Barnes, 52 W (2d) 82, 187 NW (2d) 845.
972.11 Annotation The rule that the asking of an improper question which is not answered is not ground for reversal is especially true when the trial court instructs the jury to disregard such questions and to draw no inferences from them, for an instruction is presumed to efface any possible prejudice which may have resulted from the asking of the question. Taylor v. State, 52 W (2d) 453, 190 NW (2d) 208.
972.11 Annotation A witness for the defense could be impeached by prior inconsistent statements to the district attorney even though made in the course of plea bargaining as to a related offense. Taylor v. State, 52 W (2d) 453, 190 NW (2d) 208.
972.11 Annotation The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper allegedly because he expressed his opinion as to defendant's guilt, where it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor's conviction as to what the evidence established. State v. McGee, 52 W (2d) 736, 190 NW (2d) 893.
972.11 Annotation It is error for a trial court to restrict cross-examination of an accomplice who was granted immunity, but the conviction will not be reversed if the error was harmless. State v. Schenk, 53 W (2d) 327, 193 NW (2d) 26.
972.11 Annotation Generally, a witness may not be impeached on collateral matters, and what constitutes a collateral matter depends on the issues of the particular case and the substance, rather than the form, of the questions asked on direct examination. Miller v. State, 53 W (2d) 358, 192 NW (2d) 921.
972.11 Annotation A defendant who testifies in his own behalf may be recalled for the purpose of laying a foundation for impeachment. Evidence that on a prior occasion defendant did not wear glasses and that he had a gun similar to that described by the complainant was admissible where it contradicted testimony of the defendant. Parham v. State, 53 W (2d) 458, 192 NW (2d) 838.
972.11 Annotation Where the prosecutor stated in his opening remarks that defendant refused to be fingerprinted but forgot to introduce testimony to this effect, the error is cured by proper instructions. State v. Tew, 54 W (2d) 361, 195 NW (2d) 615.
972.11 Annotation A deliberate failure to object to prejudicial evidence at trial constitutes a binding waiver. Murray v. State, 83 W (2d) 621, 266 NW (2d) 288 (1978).
972.11 Annotation Guidelines set for admission of testimony of hypnotized witness. State v. Armstrong, 110 W (2d) 555, 329 NW (2d) 386 (1983).
972.11 Annotation Act of writing about sexual desires or activities was not itself prior "sexual conduct". Victim's notes expressing sexual desires and fantasies were, therefore, admissible. State v. Vonesh, 135 W (2d) 477, 401 NW (2d) 170 (Ct. App. 1986).
972.11 Annotation Erroneously admitted and false testimony of victim that she was virgin at time of disputed assault so pervasively affected trial that issue of consent wasn't fully tried. State v. Penigar, 139 W (2d) 569, 408 NW (2d) 28 (1987).
972.11 Annotation Sub. (2) (b) (rape shield law) bars, with 2 narrow exceptions, evidence of all sexual activity by complainant not incident to alleged rape. State v. Gulrud, 140 W (2d) 721, 412 NW (2d) 139 (Ct. App. 1987).
972.11 Annotation This section doesn't violate separation of powers doctrine. State v. Mitchell, 144 W (2d) 596, 424 NW (2d) 698 (1988).
972.11 Annotation This section does not on its face violate constitutional right to present evidence, but may, in particular circumstances violate right; to establish constitutional right to present otherwise excluded evidence, defendant must make offer of proof establishing 5 factors and court must perform balancing test. State v. Pulizzano, 155 W (2d) 633, 456 NW (2d) 325 (1990).
972.11 Annotation To admit evidence of prior untruthful allegations of sexual assault under (2) (b) 3. court must be able to conclude from offer of proof that reasonable person could infer that complainant made prior untruthful allegation; "allegation" is not restricted to allegations reported to police. State v. DeSantis, 155 W (2d) 774, 456 NW (2d) 600 (1990).
972.11 Annotation Summary judgment does not apply to cases brought under the criminal code. State v. Hyndman, 170 W (2d) 198, 488 NW (2d) 111 (Ct. App. 1992).
972.11 Annotation Section 805.03 authorizing sanctions for failure to comply with court orders is applicable to criminal actions. State v. Heyer, 174 W (2d) 164, 496 NW (2d) 779 (Ct. App. 1993).
972.11 Annotation Sub. (2) requires exclusion of testimony of a victim's possible prior sexual conduct although where the alleged victim is an eight year old child physical evidence of sexual contact may create an unjust inference that the sexual contact was by sexual assault. In Interest of Michael R.B. 175 W (2d) 713, 499 NW (2d) 641 (1993).
972.11 Annotation That the complaining witness in a sexual assault case had previously consented to sexual intercourse has virtually no probative value regarding whether she consented to sexual intercourse under use or threat of violence. State v. Neumann, 179 W (2d) 687, 508 NW (2d) 54 (Ct. App. 1993).
972.11 Annotation When the state questioned an alleged rapist about the victim's motive to lie it did not open the door for admission of evidence of prior acts of consensual sex. State v. Jackson, 216 W (2d) 646, 575 NW (2d) 475 (1998).
972.11 Annotation Evidence regarding prior sexual assault by a 3rd party does not fall within one of the statutory exceptions. Pulizzano test applied. State v. Dodson, 219 W (2d) 65, 580 NW (2d) 181 (1998).
972.12 972.12 Sequestration of jurors. The court may direct that the jurors sworn be kept together or be permitted to separate. The court may appoint an officer of the court to keep the jurors together and to prevent communication between the jurors and others.
972.12 History History: 1987 a. 73; 1991 a. 39.
972.12 Annotation Allowing jury to separate during its deliberations created rebuttable presumption of prejudice. State v. Halmo, 125 W (2d) 369, 371 NW (2d) 424 (Ct. App. 1985).
972.13 972.13 Judgment.
972.13(1)(1) A judgment of conviction shall be entered upon a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest.
972.13(2) (2) Except in cases where ch. 975 is applicable, upon a judgment of conviction the court shall proceed under ch. 973. The court may adjourn the case from time to time for the purpose of pronouncing sentence.
972.13(3) (3) A judgment of conviction shall set forth the plea, the verdict or finding, the adjudication and sentence, and a finding as to the specific number of days for which sentence credit is to be granted under s. 973.155. If the defendant is acquitted, judgment shall be entered accordingly.
972.13(4) (4) Judgments shall be in writing and signed by the judge or clerk.
972.13(5) (5) A copy of the judgment shall constitute authority for the sheriff to execute the sentence.
972.13(6) (6) The following forms may be used for judgments:
STATE OF WISCONSIN
.... County
In.... Court
The State of Wisconsin
vs.
....(Name of defendant)
UPON ALL THE FILES, RECORDS AND PROCEEDINGS,
IT IS ADJUDGED That the defendant has been convicted upon the defendant's plea of guilty (not guilty and a verdict of guilty) (not guilty and a finding of guilty) (no contest) on the.... day of...., .... (year), of the crime of.... in violation of s.....; and the court having asked the defendant whether the defendant has anything to state why sentence should not be pronounced, and no sufficient grounds to the contrary being shown or appearing to the court.
*IT IS ADJUDGED That the defendant is guilty as convicted.
*IT IS ADJUDGED That the defendant is hereby committed to the Wisconsin state prisons (county jail of.... county) for an indeterminate term of not more than.....
*IT IS ADJUDGED That the defendant is ordered to serve a bifurcated sentence consisting of .... year(s) of confinement in prison and .... months/years of extended supervision.
*IT IS ADJUDGED That the defendant is placed in the intensive sanctions program subject to the limitations of section 973.032 (3) of the Wisconsin Statutes and the following conditions:....
*IT IS ADJUDGED That the defendant is hereby committed to detention in (the defendant's place of residence or place designated by judge) for a term of not more than....
*IT IS ADJUDGED That the defendant is placed on lifetime supervision by the department of corrections under section 939.615 of the Wisconsin Statutes.
*IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the costs of this action).
*IT IS ADJUDGED That the defendant pay restitution to....
*IT IS ADJUDGED That the defendant is restricted in his or her use of computers as follows:....
*The.... at.... is designated as the Reception Center to which the defendant shall be delivered by the sheriff.
*IT IS ORDERED That the clerk deliver a duplicate original of this judgment to the sheriff who shall forthwith execute the same and deliver it to the warden.
Dated this.... day of...., .... (year)
BY THE COURT....
Date of Offense....,
District Attorney....,
Defense Attorney....
*Strike inapplicable paragraphs.
STATE OF WISCONSIN
.... County
In.... Court
The State of Wisconsin
vs.
....(Name of defendant)
On the.... day of...., .... (year), the district attorney appeared for the state and the defendant appeared in person and by.... the defendant's attorney.
UPON ALL THE FILES, RECORDS AND PROCEEDINGS
IT IS ADJUDGED That the defendant has been found not guilty by the verdict of the jury (by the court) and is therefore ordered discharged forthwith.
Dated this.... day of...., .... (year)
BY THE COURT....
972.13 Note NOTE: Sub. (6) is shown as affected by three acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c).
972.13(7) (7) The department shall prescribe and furnish forms to the clerk of each county for use as judgments in cases where a defendant is placed on probation or committed to the custody of the department pursuant to chs. 967 to 979.
972.13 History History: 1975 c. 39, 199; 1977 c. 353, 418; 1979 c. 89; 1983 a. 261, 438, 538; 1987 a. 27; 1989 a. 31; 1991 a. 39; 1997 a. 250, 275, 283; s. 13.93 (2) (c).
972.13 Annotation The trial court can on motion or on its own motion modify a criminal sentence if the motion is made within 90 days after sentencing. Prior cases overruled. The first judgment should not be vacated; it should be amended. Hayes v. State, 46 W (2d) 93, 175 NW (2d) 625.
972.13 Annotation A trial court must inform the defendant of his right to appeal. If it does not, the defendant may pursue a late appeal. Peterson v. State, 54 W (2d) 370, 195 NW (2d) 837.
972.13 Annotation The court did not abuse its discretion in revoking probation, reinstating the prior sentences and sentencing on 5 subsequent offenses for a total cumulative sentence of 16 years, where the defendant had a long record and interposed a frivolous defense in the later trials. Lange v. State, 54 W (2d) 569, 196 NW (2d) 680.
972.13 Annotation Hayes v. State was not intended to impose a jurisdictional limit on the power of a court to review a sentence. State ex rel. Warren v. County Court, 54 W (2d) 613, 197 NW (2d) 1.
972.13 Annotation The requirement that a court inform the defendant of his right to appeal applies only to convictions after April 1, 1972. In re Applications of Maroney and Kunz, 54 W (2d) 638, 196 NW (2d) 712.
972.13 Annotation Following sentencing the trial court must not only advise defendant of his right to appeal but also advise defendant and his attorney of the obligation of trial counsel to continue representation pending a decision as to appeal and until other counsel is appointed. Whitmore v. State, 56 W (2d) 706, 203 NW (2d) 56.
972.13 Annotation Factors relevant to the appropriateness of the sentence discussed. Tucker v. State, 56 W (2d) 728, 202 NW (2d) 897.
972.13 Annotation A trial judge has no power to validly sentence with a mental reservation that he might modify the sentence within 90 days if defendant has profited from imprisonment, and he cannot change an imposed sentence unless new factors are present. State v. Foellmi, 57 W (2d) 572, 205 NW (2d) 144.
972.13 Annotation Claim the trial court lacked jurisdiction to impose sentence because it failed to enter judgment of conviction on the jury's verdict is not reviewable because it involves no jurisdictional question, and the construction of the statute was not raised by defendant in his motion for postconviction relief nor did defendant go back to the trial court for relief as a basis for an appeal. Sass v. State, 63 W (2d) 92, 216 NW (2d) 22.
972.13 Annotation Where Whitmore (56 W (2d) 706) instructions are given, defendant must show that failure to move for new trial constituted an unintentional waiver of rights. Thiesen v. State, 86 W (2d) 562, 273 NW (2d) 314 (1979).
972.13 Annotation See note to 971.31, citing State v. Smith, 113 W (2d) 497, 335 NW (2d) 376 (1983).
972.13 Annotation Judgment entered by state court during pendency of removal proceedings in federal court was void. State v. Cegielski, 124 W (2d) 13, 368 NW (2d) 628 (1985).
972.13 Annotation Court's refusal to poll jurors individually was reversible error. State v. Wojtalewicz, 127 W (2d) 344, 379 NW (2d) 338 (Ct. App. 1985).
972.13 Annotation Written judgment of conviction is not prerequisite to sentencing. State v. Pham, 137 W (2d) 31, 403 NW (2d) 35 (1987).
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This is an archival version of the Wis. Stats. database for 1997. See Are the Statutes on this Website Official?