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CaseLaw Express
Week of April 12, 2010

 Supreme Court Cases
  • Attorney Discipline

    Office of Lawyer Regulation v. Goldstein
    Docket: 2007AP002771 04-14-10
    PER CURIAM. The Office of Lawyer Regulation (OLR) appeals the referee's report recommending a one-year suspension of Attorney Harvey J. Goldstein's license to practice law in Wisconsin. The OLR filed a 24-count disciplinary complaint against Attorney Goldstein. John F. Fiorenza was appointed referee.
  • Attorney Discipline

    Office of Lawyer Regulation v. Soldon
    Docket: 2009AP000892 04-16-10
    PER CURIAM. We review a stipulation executed by Attorney Naomi E. Soldon and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12. In the stipulation Attorney Soldon admits that she committed eight counts of professional misconduct. She agrees with the OLR's request that her license to practice law in Wisconsin be suspended for a period of six months. After thoroughly reviewing the matter, we accept the stipulation and impose the requested discipline. Because Attorney Soldon entered into a comprehensive stipulation prior to the appointment of a referee, we do not require her to pay the costs of this proceeding.
 Court of Appeals Cases
  • Criminal Law/ Ineffective Assistance Of Counsel/ Procedure/ Appeal Barred

    State v. Winston
    Docket: 2009AP000887 04-13-10
    PER CURIAM. Shomas T. Winston appeals pro se from an order denying his claims for postconviction relief brought pursuant to WIS. STAT. § 974.06 (2007-08). We affirm.
  • Criminal Law/ Probation/ Extension/ Sentencing/ Restitution/ Statutes

    State v. Cochran
    Docket: 2009AP001548 04-13-10
    HOOVER, P.J. Erik Cochran appeals an order extending his term of probation. Cochran argues the circuit court erroneously exercised its discretion because it extended probation based solely upon Cochran's failure to make larger monthly restitution payments even though Cochran made a good faith effort to pay. We reject Cochran's argument and affirm.
  • Criminal Law/ Probation/ Sentencing/ Constitutional Law/ Barring Contact/ Conditions Of Probation/ State & Community Interests/ Judicial Authority-Discretion

    State v. Wiley
    Docket: 2009AP001407 04-13-10
    State v. Wiley
    Docket: 2009AP001408 04-13-10
    PER CURIAM. Joiquia S. Wiley appeals from amended judgments of conviction entered upon his guilty pleas to one count of substantial battery and one count of intimidating a witness. He also appeals from an order denying postconviction relief. The only issue presented is whether the circuit court properly imposed a condition of extended supervision barring Wiley from contact with the two children that he fathered with the victim of his crimes. We affirm.
  • Criminal Law/ Resentencing/ New Trial/ New Evidence/ Judicial Authority-Discretion

    State v. Brown
    Docket: 2009AP000871 04-13-10
    PER CURIAM. Leron Scott Brown appeals from an amended judgment of conviction, entered after a jury trial, for one count of substantial battery as a habitual criminal and as a party to a crime. See WIS. STAT. §§ 940.19(2), 939.62, 939.05 (2007-08). He also appeals from an order denying his postconviction motion seeking a new trial or, in the alternative, resentencing. We affirm.
  • Criminal Law/ Sentencing/ Judicial Authority-Discretion

    State v. Barry
    Docket: 2009AP001973 04-13-10
    PER CURIAM. Stephen J. Barry pled guilty to two felonies: (1) possessing cocaine (more than one gram but not more than five grams) with intent to deliver as a second or subsequent offense; and (2) bail jumping. See WIS. STAT. §§ 961.41(1m)(cm)1r., 961.48, 946.49(1)(b) (2007-08). The circuit court imposed two concurrent six-year sentences. Barry appeals from the judgment of conviction and from the order denying his postconviction motion. The only issue is whether the circuit court erroneously exercised its sentencing discretion. We affirm.
  • Criminal Law/ Sentencing/ Judicial Authority-Discretion/ Procedure/ Appeal Barred

    State v. Castellano
    Docket: 2009AP001721 04-13-10
    PER CURIAM. John Jose Castellano, pro se, appeals from an order denying his sentence modification motion. The circuit court concluded that Castellano's claims are procedurally barred. We agree and affirm.
  • Criminal Law/ Sentencing/ Procedure/ Appeal Barred

    State v. Brown
    Docket: 2009AP001190 04-13-10
    PER CURIAM. Derrick D. Brown, pro se, appeals a circuit court order denying his WIS. STAT. § 974.06 (2007-08) motion as both procedurally barred and lacking merit. Brown asserts that WIS. STAT. § 973.15(2) (1979-80) prohibits his sentences in this case from running consecutive to an earlier sentence. We agree with the circuit court that the motion is procedurally barred, and we affirm the order.
  • Environment/ DNR/ Statute/ Statutory Construction-Interpretation/ Federal Statute/ Administrative Regulations

    Andersen v. Department of Natural Resources
    Docket: 2008AP003235 04-13-10
    Recommended for Publication
    BRUNNER, J. Curt Andersen, John Hermanson, Rebecca Leighton Katers, Christine Fossen Rades, Thomas Sydow, National Wildlife Federation and Clean Water Action Council of Northeastern Wisconsin, Inc. (collectively, the Council) appeal a judgment affirming a Department of Natural Resources (DNR) decision denying a hearing on a majority of their objections to a state-issued wastewater discharge permit. The Council claims the DNR and circuit court (1) incorrectly interpreted WIS. STAT. § 283.63 to require that contested issues be raised during the public comment period to preserve them for consideration during later proceedings; and (2) improperly concluded the DNR lacks authority to determine whether the permit violates federal law. We agree with both contentions and remand for a public hearing on the Council's objections, to be conducted in accordance with the procedures set forth in § 283.63.
  • Insurance/ Contracts/ Coverage/ Exclusions/ Summary Judgment/ Wrongful Death

    Day v. Allstate
    Docket: 2008AP002929 04-13-10
    Recommended for Publication
    BRUNNER, J. Allstate Indemnity Company appeals a nonfinal order granting Wendy Day's motion for summary judgment and denying Allstate's motion for summary judgment in this insurance coverage dispute. Allstate argues the family member exclusion clause in Clinton and Holly Day's homeowners' liability policy precludes coverage for Wendy's wrongful death and survivorship claims. We agree the clause bars coverage, reverse the grant of summary judgment, and remand with directions to grant summary judgment in favor of Allstate.
  • Motor Vehicle Law/ Traffic Stops/ Criminal Law/ Search & Seizure/ Probable Cause/ Arrest

    State v. Schlapper
    Docket: 2009AP002660 04-13-10
    PETERSON, J. The State appeals an order granting Gordon Schlapper's motion to suppress evidence obtained when police searched his vehicle. The State argues the evidence should not have been suppressed because the search was (1) validly conducted as incident to the passenger's arrest, and (2) supported by probable cause. We agree. We therefore reverse and remand.
  • OWI/ Evidence/ Evidence Ruling/ Traffic Stops/ Harmless Error

    State v. Flowers
    Docket: 2009AP001575 04-15-10
    PER CURIAM. Gregory Flowers appeals a judgment convicting him of fifth-offense operating while intoxicated and operating after revocation. He contends that the circuit court committed reversible error by denying his motion to suppress an unlawful showup identification. We conclude that, even if admitting the identification evidence was error, it was harmless error. We therefore affirm.
  • OWI/ Traffic Stops/ Reasonable Suspicion

    State v. Able
    Docket: 2009AP002777 04-14-10
    ANDERSON, J. Scott W. Able appeals from his conviction for second offense operating a motor vehicle while intoxicated in violation of WIS. STAT. § 346.63(1)(a). The issue on appeal is whether the circuit court erred when it found there was reasonable suspicion to justify an investigatory stop. We affirm, because the arresting officer's suspicion was grounded in specific, articulable facts which, taken together with rational inferences from those facts, lead to the reasonable belief that Able was operating while intoxicated.
  • Private Nuisance/ Evidence/ Small Claims

    Seeger v. Kreuzpainter
    Docket: 2009AP002794 04-14-10
    SNYDER, J. Jennifer Kreuzpainter and Colin Patel appeal from a judgment in favor of William and Susan Seeger in the amount of $3500. They contend that the circuit court incorrectly held that a private nuisance existed, made erroneous credibility determinations, and improperly admitted evidence. We disagree and affirm.
  • Property/ Foreclosure Contracts/ Priority/ Discovery/ Statutes/ Admissions/ Summary Judgment

    First Bank v. Summer Haven
    Docket: 2009AP001878 04-14-10
    First Bank v. Summer Haven
    Docket: 2009AP000669 04-14-10
    PER CURIAM. In this mortgage foreclosure action, Vito and Marta Gieron, pro se, appeal from a grant of summary judgment in favor of First Bank of Highland Park ("the bank") and from the order denying their motion for reconsideration. Because we agree with the circuit court that the Gierons' mortgage was recorded second entitling the bank to priority and that the Gierons contractually agreed that their mortgage was second to the bank's, we affirm.
Links
Also of Interest
Knowing possession of child pornography clarified by court of appeals
The court of appeals affirmed a circuit court judgment that an individual knowingly possesses child pornography when he or she affirmatively pulls up images of child pornography on the Internet and views those images knowing that they contain child pornography. More

Appeals court strikes sua sponte modification of physical placement order
A court cannot modify sua sponte the physical placement order of a child under Wis. Stat. section 767.451(3), the appeals court concluded last week. More

Court clarifies exclusion clause analysis in homeowner’s insurance case
The "family exclusion clause" of a homeowner’s insurance policy precludes coverage of wrongful death and survivorship damages where half the damages would ultimately accrue to an insured person through intestacy. More

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