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, the cross-respondent's brief.
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.
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 It is suggested, however, that many of the fees appear to be out of date and should be revised.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 Annotation
An appeal was frivolous where 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 frivolous action was upheld where 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).
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).
809.26
809.26
Rule (Remittitur). 809.26(1)(1) The clerk of the court shall transmit to the trial court the judgment and opinion of the court and the record in the case filed pursuant to
s. 809.15 31 days after the filing of the decision of the court. If a petition for review is filed pursuant to
s. 809.62, the transmittal is stayed until the supreme court rules on the petition.
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.
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 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).
FELONY APPEAL PROCEDURE IN COURT OF APPEALS
809.30
809.30
Rule (Appeals in felony cases). 809.30(1)(a)
(a) "Postconviction relief" means, in a felony or misdemeanor case, an appeal or a motion for postconviction relief other than a motion under
s. 973.19 or
974.06. In a
ch. 48,
51,
55 or
938 case, other than a termination of parental rights case under
s. 48.43, it means an appeal or a motion for reconsideration by the trial court of its final judgment or order; in such cases a notice of intent to pursue such relief or a motion for such relief need not be styled as seeking "postconviction" relief.
809.30(1)(b)
(b) "Sentencing" means, in a felony or misdemeanor case, the imposition of a sentence, fine or probation. In a
ch. 48,
51,
55 or
938 case, other than a termination of parental rights case under
s. 48.43, it means the entry of the trial court's final judgment or order.
809.30(2)
(2) Appeal or postconviction motion by defendant. 809.30(2)(a)(a) A defendant seeking postconviction relief in a felony case shall comply with this section. Counsel representing the defendant at sentencing shall continue representation by filing a notice under
par. (b) if the defendant desires to pursue postconviction relief unless sooner discharged by the defendant or by the trial court.
809.30(2)(b)
(b) Within 20 days of the date of sentencing, the defendant shall file in the trial court and serve on the district attorney a notice of intent to pursue postconviction relief. The notice shall include the following:
809.30(2)(b)2.
2. An identification of the judgment or order from which the defendant intends to seek postconviction relief and the date it was granted or entered.
809.30(2)(b)3.
3. The name and address of the defendant and the defendant's trial counsel.
809.30(2)(b)4.
4. Whether defendant's trial counsel was appointed by the state public defender and if so, whether the defendant's financial circumstances have materially improved since the date the defendant's indigency was determined.
809.30(2)(b)5.
5. Whether the defendant requests the state public defender to appoint counsel for purposes of postconviction relief.
809.30(2)(b)6.
6. Whether a defendant 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 defendant has retained counsel, counsel's name and address shall be included.
809.30(2)(c)
(c) Within 5 days after a notice under
par. (b) is filed, the clerk shall:
809.30(2)(c)1.
1. If the defendant requests representation by the state public defender for purposes of postconviction relief, send to the state public defender's appellate intake office a copy of the notice, a copy of the judgment or order specified in the notice, 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 in the court record at the request of trial counsel.
809.30(2)(c)2.
2. If the defendant does not request representation by the state public defender, send or furnish to the defendant, if the defendant is appearing without counsel, or to the defendant's attorney if one has been retained, a copy of the judgment or order specified in the notice, 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 in the court record at the request of trial counsel.
809.30(2)(d)
(d) Except as provided in this paragraph, whenever a defendant whose trial counsel is appointed by the state public defender files a notice under
par. (b) requesting public defender representation for purposes of postconviction relief, the district attorney may, within 5 days after the notice is served and filed, file in the trial court and serve upon the state public defender a request that the defendant's indigency be redetermined before counsel is appointed or transcripts are ordered. This paragraph does not apply to a child who is entitled to be represented by counsel under
s. 48.23 or
938.23.
809.30(2)(e)
(e) Within 30 days after the filing of a notice under
par. (b) requesting representation by the state public defender for purposes of postconviction relief, the state public defender shall appoint counsel for the defendant and order a transcript of the reporter's notes, except that if the defendant's indigency must first be determined or redetermined, the state public defender shall do so, appoint counsel and order transcripts within 50 days after the notice under
par. (b) is filed.
809.30(2)(f)
(f) A defendant who does not request representation by the state public defender for purposes of postconviction relief shall order a transcript of the reporter's notes within 30 days after filing a notice under
par. (b).
809.30(2)(fm)
(fm) A child 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 it as is requested. To obtain the transcript at no cost, an affidavit must be filed stating that the person who is legally responsible for the child's care and support is financially unable or unwilling to purchase the transcript.
809.30(2)(g)
(g) The court reporter shall file the transcript with the trial court and serve a copy of the transcript on the defendant within 60 days of the ordering of the transcript. Within 20 days of the ordering of a transcript of postconviction proceedings brought under
sub. (2) (h), the court reporter shall file the original with the trial court and serve a copy of that transcript on the defendant. The reporter may seek an extension under
s. 809.16 (4) for filing and serving the transcript.
809.30(2)(h)
(h) The defendant shall file a notice of appeal or motion seeking postconviction relief within 60 days of the service of the transcript.
809.30(2)(i)
(i) The trial court shall determine by an order the defendant's motion for postconviction relief within 60 days of its filing or the motion is considered to be denied and the clerk of the trial court shall immediately enter an order denying the motion.
809.30(2)(j)
(j) The defendant shall file an appeal from the judgment of conviction and sentence and, if necessary, from the order of the trial court on the motion for postconviction relief within 20 days of the entry of the order on the postconviction motion.
809.30(2)(k)
(k) The clerk of the trial court shall transmit the record to the court as soon as prepared but in no event more than 40 days after the filing of the notice of appeal by the defendant. Subsequent proceedings in the appeal are governed by the procedures for civil appeals.
809.30(2)(L)
(L) An appeal under
s. 974.06 is governed by the procedures for civil appeals.
809.30(3)
(3) Appeals by state or other party. In a felony case in which the state of Wisconsin, the representative of the public or any other party appeals and the defendant or subject individual is a child or claims or appears to be indigent, the court shall refer the person to the state public defender for the determination of indigency and the appointment of legal counsel under
ch. 977.
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.
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.
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
The court of appeals did not abuse its discretion in refusing to allow a convicted felon to pursue a late appeal. State v. Argiz,
101 Wis. 2d 546,
305 N.W.2d 124 (1981).
809.30 Annotation
The limitation period under sub. (1) (f), 1983 stats. [now sub. (2) (h)] cannot begin to run until the entry of an appealable order. In Interest of M. T.
108 Wis. 2d 410,
321 N.W.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 the evidence under s. 974.02 (2). State v. Monje,
109 Wis. 2d 138,
325 N.W.2d 695 (1982).
809.30 Annotation
Because double jeopardy precludes retrial if an appellate court finds a conviction is not supported by sufficient evidence, the court must decide a claim of insufficiency even if there are other grounds for reversal that would not preclude retrial. State v. Ivy,
119 Wis. 2d 591,
350 N.W.2d 622 (1984).
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. The process to be followed when a competency issue arises is discussed. State v. Debra A. E.
188 Wis. 2d 111,
523 N.W.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 Wis. 2d 13,
552 N.W.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 Wis. 2d 195,
552 N.W.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 Wis. 2d 61,
579 N.W.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;
