Supreme Court Digest

This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

Appellate Procedure

Petition for Review - Filing Deadline - Petition from Incarcerated Prisoner

State ex rel. Nichols v. Litscher, 2001 WI 119 (filed 6 Nov. 2001)

The petitioner was convicted in a Wisconsin state court of battery by a prisoner. He was sentenced to prison and is incarcerated in a private prison in Oklahoma. On Jan. 26, 2000, the court of appeals affirmed the battery by a prisoner conviction. The petitioner then prepared a petition asking the supreme court to review the decision of the court of appeals. He delivered the petition to the mailroom at the prison where he is incarcerated on Feb. 21, 2000. A petition for review must be filed in the supreme court within 30 days of the date of the court of appeals' decision, which in this case meant that the petitioner's petition had to be filed by Feb. 25, 2000. As it turned out, the supreme court clerk received the petition one business day late.

The untimely petition was dismissed on that basis and the petitioner then petitioned the supreme court for a writ of habeas corpus. Although this petition was originally denied, the court later granted it upon reconsideration. The question before the supreme court was whether it may consider a pro se prisoner's petition for review when the petition is received by the supreme court clerk more than 30 days after the date of the court of appeals' decision from which the prisoner seeks review.

In a unanimous decision authored by Justice Bradley, the supreme court concluded that the 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing. In this case, the prisoner delivered his correctly addressed petition on the 26th day and, accordingly, the court determined that it may consider his petition for review even though it was received in the clerk's office more than 30 days after the date of the court of appeals' decision.

In a footnote, the court observed that "in order to trigger tolling, the pro se prisoner must follow prison rules or practices as to outgoing mail whether they require placing the mail in the hands of certain prison authorities, depositing mail in a designated receptacle, or some other procedure" ( ¶32 note 6).

Wisconsin Lawyer