1999 Chapter 809

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 The court may grant extensions under this section for good cause. State v. Harris, 149 Wis. 2d 943, 440 N.W.2d 364 (1989).

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;

809.31(3)(b) (b) The defendant is not likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice;

809.31(3)(c) (c) The defendant will promptly prosecute postconviction proceedings; and

809.31(3)(d) (d) The postconviction proceedings are not taken for purposes of delay.

809.31(4) (4) In making the determination on the motion, the court shall take into consideration the nature of the crime, the length of sentence and other factors relevant to pretrial release.

809.31(5) (5) The defendant or the state may seek review of the order of the trial court by filing a petition in the court. The procedures in s. 809.50 govern the petition.

809.31(6) (6) The court ordering release shall require the defendant to post a bond in accordance with s. 969.09 and may impose other terms and conditions. The defendant shall file the bond in the trial court.

809.31 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390 s. 252; 1991 a. 39; 1997 a. 232.

809.31 Note Judicial Council Committee's Note, 1978: Section 969.09 provides for release on bond pending appeal and the conditions of the bond. Section 969.01 (2) provides for bond in felony cases after conviction in the discretion of the trial court or by the Supreme Court or a justice thereof or the Court of Appeals or a judge thereof. Neither the statutes nor case law, however, establishes the standards for release or indicates whether the Supreme Court or Court of Appeals is reviewing the action of the trial court or acting de novo. This Rule is intended to meet these deficiencies. The standards for release are those included in the American Bar Association Criminal Justice Standards, Criminal Appeals, s. 2.5. [Re Order effective July 1, 1978]

809.31 Annotation Petition for bail pending appeal discussed. State v. Whitty, 86 Wis. 2d 380, 272 N.W.2d 842 (1978).

809.31 Annotation The power of a circuit court to stay execution of a sentence for legal cause does not include the power to stay sentence while collateral attack is being made on conviction by habeas corpus proceeding in federal court. This rule has no application to that situation. State v. Shumate, 107 Wis. 2d 460, 319 N.W.2d 834 (1982).

809.31 Annotation Merits of underlying appeal may be considered by trial court in considering release pending appeal and by appellate court in determining whether immediate review of order denying release pending appeal is necessary. State v. Salmon, 163 Wis. 2d 369, 471 N.W.2d 286 (Ct. App. 1991).

809.32 809.32  Rule (No merit reports).

809.32(1) (1) If an attorney appointed under s. 809.30 or ch. 977 is of the opinion that further appellate proceedings on behalf of the defendant would be frivolous and without any arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967), the attorney shall file with the court of appeals 3 copies of a brief in which is stated anything in the record that might arguably support the appeal and a discussion of why the issue lacks merit. The attorney shall serve a copy of the brief on the defendant and shall file a statement in the court of appeals that service has been made upon the defendant. The defendant may file a response to the brief within 30 days of service.

809.32(2) (2) The attorney also shall file in the trial court a notice of appeal of the judgment of conviction and of any order denying a postconviction motion. The clerk of the trial court shall transmit the record in the case to the court pursuant to s. 809.15. The no merit brief and notice of appeal must be filed within 180 days of the service upon the defendant of the transcript under s. 809.30 (2) (g).

809.32(3) (3) In the event the court of appeals finds that further appellate proceedings would be frivolous and without any arguable merit, the court of appeals shall affirm the judgment of conviction and the denial of any postconviction motion and relieve the attorney of further responsibility in the case. The attorney shall advise the defendant of the right to file a petition for review to the supreme court under s. 809.62.

809.32(4) (4) If a fully briefed appeal is taken to the court of appeals and the attorney is of the opinion that a petition for review in the supreme court under s. 809.62 would be frivolous and without any arguable merit, the attorney shall advise the defendant of the reasons for this opinion and that the defendant has the right to file a petition for review. If requested by the defendant, the attorney shall file a petition satisfying the requirements of s. 809.62 (2) (d) and (f) and the defendant shall file a supplemental petition satisfying the requirements of s. 809.62 (2) (a), (b), (c) and (e). The petition and supplemental petition shall both be filed within 30 days of the date of the decision of the court of appeals. An opposing party may file a response to the petition and supplemental petition within 10 days of the service of the supplemental petition.

809.32 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390 s. 252; 1983 a. 192; Sup. Ct. Order, 123 Wis. 2d xix (1985); 1987 a. 403 s. 256.

809.32 Annotation Judicial Council Committee's Note, 1981: Subs. (3) and (4) are amended to refer properly to the petition for supreme court review of decisions of the court of appeals.

809.32 Annotation Sub. (4) is amended to reflect the amendments to Rule 809.62 regulating the form, contents and length of a petition for review. If requested by the defendant, the attorney shall file with the supreme court a petition for review containing the statement of the case and the appendix required by Rule 809.62 (2) (d) and (f), as the attorney is in the best position to formulate the statement of the case and to provide the documents required for the appendix. The defendant shall file a supplement containing the statement of the issues presented for review, the table of contents, the statement of the criteria relied upon for a review and the argument amplifying the reasons relied on to support the petition as required by Rule 809.62 (2) (a), (b), (c) and (e). The rule does not prohibit the defendant from including a supplement to the statement of the case provided by the attorney.

809.32 Annotation The rule requires that both the petition and supplemental petition be filed within 30 days of the date of the decision of the court of appeals. As with all petitions for review, the opposing party may file a response to the petition and supplemental petition within 10 days. The amendment provides that the 10 days begins to run from the service of the supplemental petition. [Re Order effective Jan. 1, 1982]

809.32 Annotation This rule is constitutional although it does not secure an indigent convict the right to counsel in preparing a petition for review. State v. Mosley, 102 Wis. 2d 636, 307 N.W.2d 200 (1981).

809.32 Annotation The "no-merit brief" requirement under sub. (1) does not deny the right to counsel. State ex rel. McCoy v. Appeals Ct., 137 Wis. 2d 90, 403 N.W.2d 449 (1987).

809.32 Annotation Appellate counsel's closing of a file because of no merit, without the defendant knowing of the right to disagree and compel a no merit report, is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994).

809.32 Annotation The no merit appeal procedure does not apply to appeals regarding terminations of parental rights under s. 809.107. Gloria A. v. State, 195 Wis. 2d 268, 536 N.W.2d 396 (Ct. App. 1995).

809.32 Annotation Read together, s. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review, provided counsel does not determine the appeal to be without merit. Where counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the Supreme Court has the power to allow late filing. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996).

809.32 Annotation This section comports with constitutional requirements. McCoy v. Court of Appeals, 486 U.S. 429 (1988).

subch. IV of ch. 809 SUBCHAPTER IV

CHAPTERS 48, 51, 55 AND 799, TRAFFIC REGULATION, MUNICIPAL ORDINANCE VIOLATION, AND
MISDEMEANOR CASES APPEAL PROCEDURE
IN COURT OF APPEALS

809.40 809.40  Rule (Applicability).

809.40(1) (1) An appeal to the court of appeals from a judgment or order in a misdemeanor case or a ch. 48, 51, 55 or 938 case, or a motion for postconviction relief in a misdemeanor case must be initiated within the time periods specified in s. 808.04 and is governed by the procedures specified in ss. 809.30 to 809.32.

809.40(1m) (1m) Subsection (1) does not apply to an appeal from an order denying a petition under s. 48.375 (7), which is governed by the procedures specified in s. 809.105, or to an appeal from an order or judgment under s. 48.43, which is governed by the procedures specified in s. 809.107.

809.40(2) (2) An appeal to the court of appeals from a judgment or order in a ch. 799, traffic regulation or municipal ordinance violation case must be initiated within the time period specified in s. 808.04, and is governed by the procedures specified in ss. 809.01 to 809.26 and 809.50 to 809.85, unless a different procedure is expressly provided in ss. 809.41 to 809.43.

809.40(3) (3) Any civil appeal to the court of appeals under sub. (1) or (2) is subject to the docketing statement requirement of s. 809.10 (1) (a) and may be eligible for the expedited appeals program in the discretion of the court.

809.40 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1979 c. 32 s. 92 (16); Sup. Ct. Order, 92 Wis. 2d xiii (1979); 1979 c. 175 s. 53; 1979 c. 355; 1981 c. 390 s. 252; Sup. Ct. Order, 130 Wis. 2d xi xix ((1986); Sup. Ct. Order, 131 Wis. 2d xv (1986); Sup. Ct. Order, 136 Wis. 2d v, xxv ((1987); 1991 a. 263; 1993 a. 395; 1995 a. 77.

809.40 Note Judicial Council Committee's Note, 1978: Rule 809.40 establishes the time periods for appealing in a misdemeanor case or Chapter 48, 51 or 55 case or seeking postconviction relief in a misdemeanor case pursuant to s. 974.02 (1). It also makes the procedures set forth in Rules 809.30 to 809.32 apply to these types of cases.

809.40 Annotation Rules 809.41 to 809.43 establish special procedures for appeals that may be heard by one appellate judge. The appeal time periods in Chapter 299, traffic regulation and municipal ordinance violation cases, are found in s. 808.04. [Re Order effective July 1, 1978]

809.40 Note Judicial Council Committee's Note, 1979: Sub. (2) is repealed and recreated to place into it for purposes of clarity the appropriate reference in Chapter 808 containing the appeal time periods for Chapter 799, traffic regulations, and municipal ordinance violations cases. No substantive change is intended. [Re Order effective Jan. 1, 1980]

809.41 809.41  Rule (Motion for 3-judge panel or hearing in county of origin).

809.41(1) (1) If an appellant or a petitioner requesting the court to exercise its supervisory jurisdiction or its original jurisdiction to issue prerogative writs or its appellate jurisdiction to grant petitions for leave to appeal desires the matter to be decided by a 3-judge panel, the appellant or petitioner shall file with the copy of the notice of appeal required by s. 809.10 (1) (a) or with the petition requesting the court to exercise its supervisory, original or appellate jurisdiction a motion for a 3-judge panel. Any other party must file a motion under this rule for a 3-judge panel within 10 days of service of the notice of appeal or with the response to the petition. The failure to file a motion under this rule waives the right to request the matter to be decided by a 3-judge panel. A motion for a 3-judge panel in a case in which the state is a party shall also be served upon the attorney general. The attorney general may file a response to the motion within 7 days of service.

809.41(2) (2) The chief judge may change or modify his or her decision on a motion that the matter be decided by a 3-judge panel at any time prior to a decision on the merits of the appeal or petition.

809.41(3) (3) Whether or not a motion for a 3-judge panel has been filed, the chief judge may order that an appeal or petition be decided by a 3-judge panel at any time prior to a decision on the merits of the appeal or petition.

809.41(4) (4) If an appellant desires that the appeal be heard in the county where the case or action originated under s. 752.31 (3), the appellant shall file with the copy of the notice of appeal required by s. 809.10 (1) (a) a motion requesting a hearing in the county of origin. Any other party must file a motion requesting a hearing in the county of origin within 10 days of service of the notice of appeal. The failure to file a motion under this rule waives the right to request the appeal be heard in the county where the case or action originated.

809.41 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); Sup. Ct. Order 151 Wis. 2d xvii (1989); 1993 a. 486.

809.41 Note Judicial Council Committee's Note, 1979: Sub. (3) is created to clarify that the chief judge of the Court of Appeals has the authority to order that an appeal be decided by a 3-judge panel after it has initially been assigned to a single Court of Appeals judge. This authority of the chief judge may be exercised at any time prior to a decision on the merits of the appeal by the single Court of Appeals judge to whom the appeal was originally assigned. [Re Order effective Jan. 1, 1980]

809.41 Note Judicial Council Committee's Note, 1981: Rule 809.41 is amended to harmonize with ch. 192, Laws of 1979.

809.41 Annotation Sub. (1) is amended to apply the procedure for requesting a 3-judge panel for appeals to other proceedings in the types of case specified in s. 752.31 (2). The rule is also amended to require that if the motion for 3-judge panel is in a case in which the state is a party the motion must be served upon the attorney general as well as all persons of record. If the district attorney files the motion for 3-judge panel, the district attorney must serve the motion on the attorney general. The attorney general is given 7 days to respond to the motion.

809.41 Annotation The rule is further amended to require that the motion for 3-judge panel be filed with the copy of the notice of appeal required to be sent to the clerk of the court of appeals under Rule 809.10 (1) (a) and not with the original notice of appeal filed with the clerk of the circuit court.

809.41 Annotation Subs. (2) and (3) are amended to clarify that their provisions may apply to both an appeal and a petition requesting the exercise of supervisory jurisdiction or original jurisdiction to issue a prerogative writ.

809.41 Annotation Section 752.31, as amended by ch. 192, Laws of 1979, provides for a hearing in the county of origin for appeals but not for other proceedings such as a petition for supervisory writ or original jurisdiction prerogative writ. Sub. (4) is created to set out in a separate subsection of Rule 809.41 the procedure to request that an appeal be heard in the county where a case or action originated as authorized under sub. 752.31 (3). The creation of this separate subsection makes no substantive change in the prior procedure that was contained in Rule 809.41 (1). The rule requires that the motion for hearing in county of origin be filed with the copy of the notice of appeal required to be sent to the clerk of the court of appeals under Rule 809.10 (1) (a).

809.41 Annotation Rule 809.41 is also amended to clarify that the appeal or petition is decided rather than heard, as oral argument may not occur in all matters filed in the court of appeals. [Re Order effective Jan. 1, 1982]

809.42 809.42  Rule (Waiver of oral argument). The appellant and respondent in an appeal under s. 752.31 (2) may waive oral argument, subject to approval of the court.

809.42 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979).

809.42 Note Judicial Council Committee's Note, 1979: This rule is amended to delete language authorizing an appellant and respondent to waive the filing of briefs in an appeal to the Court of Appeals. The Court of Appeals as a consistent policy does not allow the waiving of filing of briefs. The rule is brought into conformity with that policy. [Re Order effective Jan. 1, 1980]

809.43 809.43  Rule (Number of briefs).

809.43(1) (1) A person who files a brief or appendix shall file 8 copies with the court, or such other number as the court directs, and serve 3 copies on each party.

809.43(2) (2) A person who is found indigent under s. 814.29 and files a brief or appendix shall file the original and 2 copies with the court and serve one copy on each party.

809.43 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 164 Wis. 2d xxix (1991).

subch. V of ch. 809 SUBCHAPTER V

DISCRETIONARY JURISDICTION PROCEDURE IN COURT OF APPEALS

809.50 809.50  Rule (Appeal from judgment or order not appealable as of right).

809.50(1) (1) A person shall seek leave of the court to appeal a judgment or order not appealable as of right under s. 808.03 (1) by filing within 10 days of the entry of the judgment or order a petition and supporting memorandum, if any. The petition and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. The petition shall contain:

809.50(1)(a) (a) A statement of the issues presented by the controversy;

809.50(1)(b) (b) A statement of the facts necessary to an understanding of the issues;

809.50(1)(c) (c) A statement showing that review of the judgment or order immediately rather than on an appeal from the final judgment in the case or proceeding will materially advance the termination of the litigation or clarify further proceedings therein, protect a party from substantial or irreparable injury, or clarify an issue of general importance in the administration of justice; and

809.50(1)(d) (d) A copy of the judgment or order sought to be reviewed.

809.50(2) (2) An opposing party in the trial court shall file a response with supporting memorandum, if any, within 10 days of the service of the petition. The response and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. Costs and fees may be awarded against any party in a petition for leave to appeal proceeding.

809.50(3) (3) If the court grants leave to appeal, the procedures for appeals from final judgments are applicable to further proceedings in the appeal, except that the entry of the order granting leave to appeal has the effect of the filing of the notice of appeal.

809.50(4) (4) A person filing a petition under this section shall append to the petition a statement identifying whether the petition is produced with a monospaced font or with a proportional serif font. If produced with a proportional serif font, the person shall set forth the word count of the petition.

809.50 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 151 Wis. 2d xvii (1989); Sup. Ct. Order, 164 Wis. 2d xxix (1991); Sup. Ct. Order, 171 Wis. 2d xxxv (1992); Sup. Ct. Order No. 93-20, 179 Wis. 2d xxv.

809.50 Note Judicial Council Committee's Note, 1978: Section 808.03 (1) makes only final judgments and final orders appealable as of right. All other judgments and orders are appealable only in the discretion of the court. This section provides the procedure for asking the court to permit the appeal of a nonfinal order. The issue of whether the court should hear the appeal is presented to the court by petition with both parties given the opportunity of submitting memoranda on the question. The standards on which nonfinal judgments or orders should be reviewed immediately are set forth in s. 808.03 (2) and are taken from the American Bar Association's Standards of Judicial Administration, Standards Relating to Appellate Courts, s. 3.12 (b). [Re Order effective July 1, 1978]

809.50 Note Judicial Council Committee's Note, 1979: Sub. (1) (c) is amended to conform with 808.03 (2) (b), which sets out the standards created by the Wisconsin Legislature for appeals to the Court of Appeals by permission. A drafting error in the original preparation of chapter 809 replaced the word "or" found in 808.03 (2) (b) with the word "and", which results in a party having to show in a petition to the Court of Appeals for the court to assume discretionary jurisdiction that granting such a petition will protect a party from both substantial "and" irreparable injury rather than meeting just one of the 2 criteria, as was the intention of the Wisconsin Legislature. [Re Order effective Jan. 1, 1980]

809.50 Annotation Once leave to appeal is granted, a cross-appeal from the same interlocutory order or judgment in the action requires a petition for leave to appeal. Fedders v. American Family Mutual Insurance Co. 230 Wis. 2d 577, 601 N.W.2d 861 (Ct. App. 1999).