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  • WisBar News
    December 15, 2011

    Wisconsin Supreme Court will decide whether Mexican national can withdraw guilty plea

    Dec. 15, 2011 – A Mexican national who pled guilty to second-degree sexual assault of a child 18 years ago and served his prison sentence wants to withdraw his plea to avoid deportation. The Wisconsin Supreme Court, which accepted review of four new cases, will decide if he can.

    Wisconsin Supreme Court will decide whether   Mexican national can withdraw guilty plea Abraham Negrete is an illegal immigrant facing deportation proceedings based on his 1992 sexual assault guilty plea. In March 2010, Negrete filed a motion to withdraw the guilty plea to avoid deportation, but the transcript of his plea is no longer available.

    The supreme court will decide whether a missing transcript prevents Negrete from withdrawing his guilty plea under Wis. Stat. section 971.08(2), which requires a court to vacate an applicable judgment if the court fails to advise the defendant that a guilty plea may result in deportation.

    In State v. Negrete, 2010AP1702, the appeals court ruled that a court’s failure to warn Negrete of deportation consequences, if that was the case, was harmless error because Negrete signed a plea/waiver form that his lawyer discussed potential deportation with him.

    State v. Rowan, 2010AP1398

    On certification from the Wisconsin Court of Appeals, the Wisconsin Supreme Court will decide whether a condition of extended supervision that allows any law enforcement officer to search the defendant, her home, or her vehicle, for a firearm at any time without probable cause or reasonable suspicion is permissible under the U.S. and Wisconsin constitutions.

    The state argues that the condition imposed on Tally Ann Rowan – convicted on charges of battery to a police officer, OWI, resisting or obstructing an officer, and carrying a concealed weapon – is permissible under Samson v. California, 547 U.S. 843 (2006).

    The Lamar Co. v. Country Side Restaurant, 2010AP2023

    In this case, the Wisconsin Supreme Court will address compensation issues for billboard and property owners under the government’s power of eminent domain and condemnation proceedings. This is the first case arising from the state’s recently revised “unit rule.”

    Under City of Milwaukee Post No. 2874 VFW v. Redevelopment Authority, 2009 WI 84, 319 Wis. 2d 553, 768 N.W.2d 749, the unit rule determines fair market value of property as if one person owned the property. The condemnor makes a single payment for the property taken and that payment is apportioned among the various property owners.

    At $5,400 annually, the Lamar Co. leased space for a billboard on land owned by Country Side Restaurant. The Wisconsin Department of Transportation (DOT) condemned the land under its eminent domain power. DOT paid Lamar Co. $83,525 for the value of the sign and removal and relocation expenses. Country Side received $1.98 million. The parties disagree on division of an additional $120,000, which was deposited with the circuit court clerk for eventual distribution.

    Lamar Co. filed a claim for partition of the remaining monies under Wis. Stat. section 32.05(9)(a)3. Country Side argues that section 84.30(8) is Lamar Co.’s exclusive remedy, and Lamar Co. already received agreed-to compensation from the DOT.

    Best Price Plumbing v. Erie Ins., 2010AP1474

    A breach-of-contract case, the Wisconsin Supreme Court will examine whether an insurance company can satisfy the terms of its contract with a service provider by issuing a two-party check payable to both a service provider and the insured, and delivering to the insured.

    Willtrim Group LLC, insured by Erie Insurance Exchange, suffered a loss due to frozen pipes at a vacant rental property. Erie Insurance contracted with Best Price Plumbing to fix the pipes.

    Erie Insurance sent a check, payable to Best Price Plumbingand Willtrim Group, to Willtrim Group for payment of Best Price Plumbing’s $8,897 invoice.

    A Willtrim Group member, who was dissatisfied with the plumbing service, testified that a Best Price endorsement of the check was obtained and the funds deposited into Willtrim Group’s corporate account. Best Price never received payment for service provided.

    Best Price sued Erie Insurance for breach of contract, claiming a failure to pay invoice amounts under the terms of the contract. The circuit court ruled, contrary to the jury, that no credible evidence could support a finding that Erie complied with its contract obligation.

    The circuit entered judgment of $14,650 against Erie. But the appeals court reversed, noting testimony that two-party payment was customary in the insurance industry.

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