CHAPTER 974
CRIMINAL PROCEDURE—APPEALS, NEW TRIALS AND WRITS OF ERROR
974.01 Misdemeanor appeals.
974.02 Appeals and postconviction relief in criminal cases.
974.06 Postconviction procedure.
Ch. 974 Cross-reference
Cross-reference: See definitions in s.
967.02.
974.01
974.01
Misdemeanor appeals. 974.01(1)(1) Appeals in misdemeanor cases are to the court of appeals.
974.01(2)
(2) In lieu of a transcript on appeal, the oral proceedings may be presented in an agreed statement signed by all the parties to the appeal. This shall be a condensed statement in narrative form of all of the portions of the oral proceedings as are necessary to determination of the question on appeal.
974.01 History
History: 1971 c. 298; Sup. Ct. Order, 67 W (2d) 585, 784 (1975);
1977 c. 187.
974.01 Annotation
The disposition made under 161.47, with probation without entering a judgment of guilt, is not appealable to the circuit court, because there is no judgment. State v. Ryback, 64 W (2d) 574, 219 NW (2d) 263.
974.02
974.02
Appeals and postconviction relief in criminal cases. 974.02(1)(1) A motion for postconviction relief other than under
s. 974.06 by the defendant in a criminal case shall be made in the time and manner provided in
ss. 809.30 and
809.40. An appeal by the defendant in a criminal case from a judgment of conviction or from an order denying a postconviction motion or from both shall be taken in the time and manner provided in
ss. 808.04 (3),
809.30 and
809.40. An appeal of an order or judgment on habeas corpus remanding to custody a prisoner committed for trial under
s. 970.03 shall be taken under
ss. 808.03 (2) and
809.50, with notice to the attorney general and the district attorney and opportunity for them to be heard.
974.02(2)
(2) An appellant is not required to file a postconviction motion in the trial court prior to an appeal if the grounds are sufficiency of the evidence or issues previously raised.
974.02 Note
Judicial Council Note, 1983: Sub. (1) is amended to repeal provisions relating to appeals under ch. 48, 51 or 55 cases. Those provisions have been relocated in their respective chapters for ease of reference. The subsection is also amended to clearly establish the time for bringing a postconviction motion other than under s. 974.06 and the manner for proceeding and the appeal times from a judgment of conviction, order denying a postconviction motion or both. Reference in sub. (1) to s. 809.30 is changed to s. 809.50 because the latter statute prescribes appropriate procedures for discretionary appeals while the former does not. [Bill 151-S]
974.02 Annotation
Where post-trial motions are not justified by prejudicial error or required in the interest of justice, counsel appointed to defend an indigent is to be commended for not prolonging the case. Schwamb v. State, 46 W (2d) 1, 173 NW (2d) 666.
974.02 Annotation
Recantation of the accomplice who had testified for the state (by affidavit subsequently executed) stating that his testimony had been perjurious did not constitute grounds for a new trial where uncorroborated by any other newly discovered evidence, and especially had no legal significance in light of positive identification of defendant by the victim as well as another eyewitness. Nicholas v. State, 49 W (2d) 683, 183 NW (2d) 11.
974.02 Annotation
A motion for a new trial is a motion for the retrial of issues and is not an appropriate remedy for one convicted on a guilty plea; however, such a motion may be deemed a motion for leave to withdraw a plea of guilty and for a trial, and in such a case the trial court has inherent power to hear the motion. State v. Stuart, 50 W (2d) 66, 183 NW (2d) 155.
974.02 Annotation
Tests for the granting of a new trial in the interest of justice discussed. State v. Chabonian, 50 W (2d) 574, 185 NW (2d) 289.
974.02 Annotation
Acceptance of the guilty plea could not be validated by argument that defendant's acts were within the proscriptions of the charged statute or that defendant did in fact understand the charge, for the court has a duty to fulfill the Ernst requirements on the record, and such knowledge cannot be imputed to the defendant from defendant's other statements or by recourse to the preliminary transcript where defendant never testified as to his knowledge of the charge or his understanding of the crime. McAllister v. State, 54 W (2d) 224, 194 NW (2d) 639.
974.02 Annotation
A motion for a new trial on newly discovered evidence need not be granted where the evidence consists of the affidavits of 2 girls, one of which says that the crime was committed by someone else in their presence, and the other affidavit stating that both girls were frequently intoxicated and that affiant has no recollection of the alleged facts. Swonger v. State, 54 W (2d) 468, 195 NW (2d) 598.
974.02 Annotation
Newly discovered evidence does not include newly discovered importance of evidence previously known and not used. Vara v. State, 56 W (2d) 390, 202 NW (2d) 10.
974.02 Annotation
While a motion for a new trial is directed to the discretion of the trial court and its order granting one will be affirmed unless there is an abuse of discretion, that rule is subject to the qualification that when the court has proceeded on an erroneous view of the law, that amounts to an abuse of discretion, which is also a ground for reversal. State v. Mills, 62 W (2d) 186, 214 NW (2d) 456.
974.02 Annotation
Even claim of constitutional right will be deemed waived unless timely raised in trial court. Maclin v. State, 92 W (2d) 323, 284 NW (2d) 661 (1979).
974.02 Annotation
Prerequisite to claim on appeal of ineffective trial representation is preservation of trial counsel's testimony at hearing in which representation is challenged. State v. Machner, 92 W (2d) 797, 285 NW (2d) 905 (Ct. App. 1979).
974.02 Annotation
A defendant's escape during the pendency of post-conviction motions constituted a forfeiture of of the relief sought and dismissal of the motion with prejudice was appropriate. State v. Braun, 185 W (2d) 153, 516 NW (2d) 740 (1994).
974.02 Annotation
A new trial based on new evidence may be granted only if it meets the 5 point test enumerated in this case. In addition where the evidence is a recantation by a witness, the recantation must be sufficiently corroborated by other newly discovered evidence. State v. Terrance J.W. 202 NW (2d) 497, 550 NW (2d) 445 (Ct. App. 1996).
974.02 Annotation
The requirement of corroboration of a recantation as the basis of a post-sentencing motion to withdraw a guilty plea by other newly-found evidence is met if there is a feasible motive for the initial false statement where the motive was previously unknown and there are circumstantial guarantees of the trustworthiness of the recantation. State v. McCallum, 208 W (2d) 463, 561 NW (2d) 707 (1997).
974.02 Annotation
Where a court decision entered after the appellant's conviction constitutes a new rule of substantive law, the appellant has not waived the right to seek post-conviction relief based on the newly announced rule. State v. Howard, 211 W (2d) 269, 564 NW (2d) 753 (1997).
974.02 Annotation
One of the factors required for a new trial based on newly discovered evidence is a reasonable probability of a different result at the new trial, which must be established by clear and convincing evidence. State v. Avery, 213 W (2d) 228, 570 NW (2d) 573 (Ct. App. 1997).
974.02 Annotation
A motion for a new trial based on new evidence that after sentencing a co-defendant claimed full responsibility for a murder, recanting her trial testimony that neither co-defendant was involved, required corroboration of the newly discovered evidence and a finding that there was a reasonable probability that a jury considering the original trial testimony and later statements would have a reasonable doubt about the defendants guilt. State v. Mayo, 217 W (2d) 217, 579 NW (2d) 768 (Ct. App. 1998).
974.02 Annotation
By moving for new trial, defendant does not waive right to acquittal based on insufficiency of evidence. Burks v. United States, 437 US 1 (1978).
974.02 Annotation
Failure to petition state supreme court for review precluded federal habeas corpus relief. Carter v. Gagnon, 495 F Supp. 878 (1980).
974.02 Annotation
Postconviction remedies in the 1970's. Eisenberg, 56 MLR 69.
974.02 Annotation
Confusion in the court --Wisconsin's harmless error rule in criminal appeals. 63 MLR 641 (1980).
974.02 Annotation
The duties of trial counsel after conviction. Eisenberg, 1975 WBB No. 2.
974.05(1)(1) Within the time period specified by
s. 808.04 (4) and in the manner provided for civil appeals under
chs. 808 and
809, an appeal may be taken by the state from any:
974.05(1)(a)
(a) Final order or judgment adverse to the state, whether following a trial or a plea of guilty or no contest, if the appeal would not be prohibited by constitutional protections against double jeopardy.
974.05(1)(c)
(c) Judgment and sentence or order of probation not authorized by law.
974.05(1)(d)
(d) Order or judgment the substantive effect of which results in:
974.05(2)
(2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by
s. 809.10 (2) (b).
974.05(3)
(3) Permission of the trial court is not required for the state to appeal, but the district attorney shall serve notice of such appeal or of the procurement of a writ of error upon the defendant or the defendant's attorney.
974.05 History
History: 1971 c. 298; Sup. Ct. Order, 67 W (2d) 585, 784 (1975);
1977 c. 187;
1983 a. 219;
1991 a. 39;
1993 a. 486.
974.05 Annotation
Where the state appeals from an order suppressing evidence the defendant can ask for a review of another part of the order, although he could not appeal directly. State v. Beals, 52 W (2d) 599, 191 NW (2d) 221.
974.05 Annotation
The fact that the state can appeal from an order suppressing evidence, but the defendant cannot, does not show a denial of equal protection of the law. State v. Withers, 61 W (2d) 37, 211 NW (2d) 456.
974.05 Annotation
The granting of a motion to withdraw a guilty plea is a final order appealable by the state. State v. Bagnall, 61 W (2d) 297, 212 NW (2d) 122.
974.05 Annotation
The trial court's setting aside of a jury finding of defendant's guilt in exhibiting an obscene film preview contrary to 944.21, and its dismissal of the information, was not appealable by the state because it was a final judgment adverse to the state made after jeopardy had attached, and jeopardy was not waived; hence the judgment was not within those situations from which a state appeal is authorized by this section. State v. Detco, Inc. 66 W (2d) 95, 223 NW (2d) 859.
974.05 Annotation
Trial court's order specifying conditions of incarceration was neither judgment nor sentence under (1) (c). State v. Gibbons, 71 W (2d) 94, 237 NW (2d) 33.
974.05 Annotation
Under 808.03 (2), both prosecution and defense may seek permissive appeal of nonfinal orders. State v. Rabe, 96 W (2d) 48, 291 NW (2d) 809 (1980).
974.05 Annotation
Sub. (1) (d) 2 authorized state to appeal order suppressing defendant's oral statements. State v. Mendoza, 96 W (2d) 106, 291 NW (2d) 478 (1980).
974.05 Annotation
Sub. (2) does not confine right of cross-appeal to final judgments or orders. State v. Alles, 106 W (2d) 368, 316 NW (2d) 378 (1982).
