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Vol. 74, No. 6, June 2001
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New Rules of Appellate Procedure
Marla J. Stephens
On
April 30, 2001, the Wisconsin Supreme Court entered an order amending
the rules of appellate procedure upon the petition of the Wisconsin Judicial
Council.1 Beginning in 1997,
the Judicial Council's Appellate Procedure Committee solicited and reviewed
suggestions for changes to the appellate rules. After numerous drafts
of proposals were circulated among advisory committee members for comment,
the full Council unanimously approved the rule change petition that was
filed with the court in February 2000.
In an effort to make the rules easier to find and understand,
subsections and titles were created and unnecessary language was deleted.
In addition, case law affecting appellate procedure was incorporated into
the rules. Judicial Council Notes explaining the changes are contained
in the order for informational purposes. This article will summarize the
amendments to existing rules and highlight the new rules that are effective
on July 1, 2001. Changes that apply to all appeals will be noted first,
followed by changes to the rules governing termination of parental rights
appeals2
and the rules governing criminal, civil commitment, protective placement,
children's code and juvenile justice code appeals.3
Finally, the status of several proposals in the Judicial Council's petition
that are still pending will be discussed.
Summary of Changes to Rules
808 and 809
Time limits. Most time limits that were 7 days are now
11 days, and most time limits that were 10 days are now 14 days.4 The new time limits
remove the impact of Wis. Stat.
§ 801.15(5)(a) (when calculating time limits of less than 11 days,
Saturdays, Sundays and holidays are excluded) and assist the court in
automating its calculations of accurate deadlines.5
The time limits in Wis. Stat.
§§ 809.105 (parental consent to abortion appeal) and 809.107 (termination
of parental rights appeal) have not been enlarged. Defect in notice of appeal. An inconsequential error
in the content of the notice of appeal is not a jurisdictional defect.6 This rule codifies
existing caselaw.7
Transcript preparation time limits and requests. Former
Wis. Stat. §§ 809.11(4) and 809.16 contained the rules
governing requests for transcripts and preparation of transcripts. Former
rule 809.16 has been repealed, and its contents can now be found in rule
809.11(4)-(7). The appellant now has 14 days (increased from 10 days)
after filing the notice of appeal to request transcripts for the other
parties to the appeal and to file and serve the statement on transcript.8
A court reporter has 5 days within which to sign and return to the appellant
a certification that the appellant has requested transcripts for the other
parties to the appeal and arranged to pay for the copies.9
Within 14 days (increased from 10 days) of the filing of the statement
on transcript, any other party to the appeal may file and serve a designation
of additional transcripts to be included in the record on appeal. The
appellant must then file a supplemental statement on transcript, or the
other party may move the circuit court for an order requiring the appellant
to do so.10
These requirements also apply to a cross-appellant.11
Court reporters have 60 days to file and serve the transcripts identified
in the appellant's statement on transcript and 20 days to file and serve
transcripts following a request or order for supplementation.12
Wis. Stat. §§ 809.11(4)-(7)
do not apply in parental consent to abortion and termination of parental
rights appeals.13 Alternative dispute resolution in the court of appeals.
The court of appeals is authorized to establish an appellate mediation
program.14
Participation in the appellate mediation program is voluntary, but participation
in presubmission conferences may be mandatory.15
Only cases in which a docketing statement is required under Wis. Stat. § 809.10(1)(d) are eligible
to participate in the program.16 Mediation is therefore not available
in appeals brought under Wis. Stat. § 809.105 (parental consent
to abortion), § 809.107 (termination of parental rights), § 809.32 (no
merit report), or in criminal cases. The parties to the appeal shall pay
the fees of a mediator providing services under the program, unless the
fees are waived or deferred by the court.17 The rules and procedures governing
the program shall be set forth in the court of appeals internal operating
procedures.18 Any form of alternative
dispute resolution, as defined in Wis. Stat. § 802.12(1), may be utilized. Time limits tolled pending resolution of motions. The
following motions toll the time for performing any act under the rules
of appellate procedure from the date the motion is filed until the date
the motion is decided by an order: a motion seeking an order affecting
the disposition of an appeal or the content of a brief, a motion seeking
to supplement or correct the record on appeal, and a motion seeking consolidation
of cases.19 If a motion to
supplement or correct the record is filed in circuit court, the clerk
of circuit court may not transmit the record until the motion has been
decided.20
The motion to supplement or correct the record is deemed denied if not
decided within 14 days after it is filed.21 If a motion to supplement or correct
the record is granted, time limits continue to be tolled until the supplemental
record return is filed.22
A copy of any motion to supplement or correct the record filed in circuit
court must be served on the clerk of the court of appeals.23
The clerk of circuit court must be served with a copy of any motion filed
under § 809.14 in the court of appeals because the motion tolls time limits.24
Number of briefs. The number of briefs to be filed in
the supreme court remains at 22, the number of briefs to be filed in the
court of appeals remains at 10, and the number of copies of briefs that
must be served on the other parties to the appeal remains at 3.25 An indigent party appearing without
an attorney, or a prisoner appearing without an attorney allowed to proceed
without prepayment of fees under § 814.29(1m)(Prisoner Litigation Reform
Act), must file 5 briefs in the court of appeals and serve one copy on
the other parties in a three-judge appeal, and must file 3 briefs in the
court of appeals and serve one copy on the other parties in a one-judge
appeal.26 Brief covers. Brief captions must include the names
of all parties in the circuit court and indicate the status of the party
in the circuit court and the appellate court, if any.27 For example, supreme court briefs
should state party designations from the circuit court, court of appeals
and supreme court, if applicable: Jane Doe, Defendant-Appellant-Petitioner. Confidentiality. If a person is entitled to confidentiality
under the law, the person must be identified by first name and last initial
in all documents filed with the court.28
The subjects of proceedings under chapters 48 (Children's Code), 51 (civil
commitment), 55 (protective placement), 938 (Juvenile Justice Code) and
in paternity cases are entitled to confidentiality. Different confidentiality
and anonymity requirements apply in parental consent to abortion appeals.29
Signature on briefs. An attorney who files a brief must
sign it. If an attorney does not represent a party, that party must sign
the brief.30 References to parties within the brief. Parties must
be referred to by name throughout the argument section, not by their status
on appeal or their party designation.31 Reply briefs. Reply briefs must contain citations to
the record and a conclusion.32 Authorized methods of brief binding. Velobinding is
added to stapling and hot glue (or "perfect" binding) as an authorized
binding method. The clerk of court must authorize any other binding method
before the brief is filed.33
Time limits for respondent's brief and reply brief.
The respondent's brief must be filed within the later of: 30 days after
service of the appellant's brief, plus 3 days if service is by mail; or
30 days after the appellant's brief is accepted for filing by the clerk
of the court of appeals.34
The appellant's reply brief is due on the later of: 15 days after service
of the respondent's brief, plus 3 days if service is by mail; or 15 days
after the respondent's brief is accepted for filing by the clerk.35 Briefing cross-appeals. The cross-appeal briefing requirements
have been rewritten for clarification.36 Limitation of issues in appeal of non-final order. If
a petition for leave to appeal a non-final order is granted, the court
of appeals may specify the issue or issues it will review.37 Citation of supplemental authority. If new authority
is issued after briefing or after oral argument, but before decision,
a party may notify the court by sending a letter to the clerk with a copy
to the other parties to the appeal.38
The letter must state the citation for the new authority, identify the
page of the brief or point of oral argument to which it pertains, and
briefly discuss the proposition that the authority supports.39 If the new authority
is a court of appeals opinion, it is considered issued on the date that
publication of the opinion is ordered.40
A response letter may be sent to the clerk, with copies to the other parties
to the appeal, within 11 days after the supplemental authority letter
is served.41
The response letter must briefly discuss why the supplemental authority
does not support the stated proposition.42 Objections to circuit court judgment or order entered after
remand. If an appellate court remands the record to the circuit court
for action upon specific issues, or for additional proceedings while the
appeal is pending, the appellate court, in the pending appeal, may review
the judgment or order that the circuit court entered following the remand.43 A party must file in the appellate
court a written statement of objections to the circuit court judgment
or order within 14 days after the record is returned to the appellate
court.44 A party that files a written statement
of objections need not file a notice of appeal or cross-appeal.45 The obligations of a person filing
a statement of objections are the same as those of a cross-appellant.46 The statement of objections should
advise the court whether and how the issues have changed after the remand. Reconsideration of a court of appeals opinion or order.
A party may file a motion for reconsideration in the court of appeals
within 20 days after the date of a decision or order.47 The motion must state with particularity
the points of law or fact alleged to be erroneously decided and must include
a supporting argument.48
No response to the motion may be filed unless ordered by the court.49
An amended decision or order will not be issued unless the court first
orders a response.50 The motion and any response shall not exceed 5
pages in monospaced font or 1,100 words in proportional serif font.51 In response to a motion for reconsideration,
the court shall either issue an amended decision or order, or the court
shall issue an order denying the motion.52
The court may also reconsider a decision or order on its own motion at
any time prior to remittitur if no petition for review is filed, or within
30 days after a petition for review is filed in the supreme court.53
No motion for reconsideration is permitted in a § 809.105 (parental consent
to abortion) case.54 The time limit for filing a motion for reconsideration
may not be enlarged.55
Remittitur is stayed pending resolution of the motion for reconsideration.56
Warning: the time limit for filing a petition for review in the supreme
court is not tolled by filing a motion for reconsideration. Petition for Review. Both the petition for review and
the response to the petition for review must have white covers.57 Ten copies of each must be filed
with the clerk of the supreme court.58
Sanctions. The court of appeals may sanction a party
who violates an order of the court.59
Termination of Parental Rights (TPR) Appeals - transcript
and circuit court case record request, transcript preparation, notice
of appeal and transmittal of record. The circuit court case record
and the transcript of the reporter's notes must be requested by a person
who files a Notice of Intent to Appeal within 15 days after filing the
Notice of Intent to Appeal.60 The transcript
must be served on that person and filed in circuit court, and the circuit
court case record must be served on that person, within 30 days after
the request.61 The person must file and serve
a notice of appeal within 30 days after service of the transcript.62 The clerk of circuit court must
transmit the record on appeal to the court of appeals within 15 days after
the notice of appeal is filed.63 TPR appeals - statement on transcript. The appellant
must request copies of the transcript for the other parties to the appeal,
and make arrangements to pay for the copies, within 5 days after filing
the notice of appeal.64
The appellant's statement on transcript, containing the court reporter's
certification that the appellant ordered transcript copies for the other
parties to the appeal and made arrangements to pay for the copies, must
be filed in the court of appeals and served on the other parties to the
appeal and the clerk of the circuit court within 5 days after filing the
notice of appeal.65
The court reporter must serve copies of the transcript on the other parties
to the appeal within 5 days after the appellant's request.66 TPR appeals – no-merit procedure. A no-merit report,
response to no-merit report and supplemental no-merit report under Wis.
Stat. § 809.32 may be filed in a TPR appeal.67
The no-merit time limits track the briefing time limits in Wis. Stat. § 809.107(6). The appointed
attorney must file the no-merit report and certification, and serve copies
of the no-merit report, certification and the record on appeal on the
client-parent within 15 days after the record on appeal is filed.68
The client-parent may file a response to the no-merit report within 10
days after service of the no-merit report.69 Within 5 days after
a response to the no-merit report is filed, the clerk of the court of
appeals must send a copy of the response to the appointed attorney.70 The appointed attorney may file a supplemental
no-merit report and affidavits within 10 days after receiving the response
to the no-merit report.71 TPR appeals - ineffective assistance of counsel claims,
and other claims requiring post-judgment fact-finding. If the appellant
intends to appeal on any ground that requires fact-finding after entry
of the final judgment or order in the circuit court, the appellant must
file a motion in the court of appeals raising the issue and asking the
court to retain jurisdiction over the appeal and remand the case to the
circuit court to hear and decide the issue.72
The motion must be filed within 15 days after the record on appeal is
filed.73
If the court of appeals grants the motion, it shall set time limits for
the circuit court to hear and decide the issue, for the appellant to request
a transcript of the remand proceedings, and for the court reporter to
file and serve the transcript of the remand proceedings, and extend the
time limit for the appellant to file a brief presenting all grounds for
relief in the pending appeal.74
Rule 809.30 appeals – time limit for state public defender's
appointment of counsel and requests for circuit court case record and
transcript. The state public defender must appoint counsel and request
a transcript of the reporter's notes and a copy of the circuit court case
record within 30 or 50 days after the state public defender receives from
the clerk of the circuit court a file-stamped copy of the notice of intent
to pursue postconviction relief, a file-stamped copy of the judgment or
order specified in the notice of intent, a list of court reporters for
the circuit court proceedings and a list of any transcripts in the circuit
court file.75 The state public
defender must appoint counsel within 30 days after receipt of the clerk's
materials if indigence does not need to be re-determined, and within 50
days after receipt of the clerk's materials if indigence must be determined
or re-determined.76 Rule 809.30 appeals – time limit for person denied state
public defender representation to request circuit court case record and
transcript. A person who is denied representation by the state public
defender must request a transcript of the reporter's notes, and may request
a copy of the circuit court case record, within 90 days after filing the
notice of intent to pursue postconviction relief.77 Rule 809.30 appeals – service of circuit court case record
and transcript. The clerk of circuit court must serve a copy of the
circuit court case record, and the court reporter must file and serve
the transcript, within 60 days of a request to do so.78 Rule 809.30 appeals – notice of appeal. The notice of
appeal must state the last date of service of the copy of the transcript
or the circuit court case record if no postconviction motion is filed,
the date of the order determining the postconviction motion, or the date
of any other notice of appeal deadline that was set by the court of appeals.79 A copy of the order appointing
counsel must be attached if counsel was appointed by the state public
defender.80 Rule 809.30 appeals – postconviction motion. A notice
of motion should not be filed with a postconviction motion.81 A postconviction
motion is deemed denied if it is not determined by the circuit court within
60 days after it is filed, unless the court of appeals extends the time
limit for decision at the request of the defendant or the circuit court.82
Rule 809.30 appeals – motion to withdraw as appointed counsel.
An attorney appointed by the state public defender who seeks to withdraw
from the case must file a motion to withdraw and serve a copy of the motion
on the client and on the state public defender appellate intake unit in
the Madison appellate office.83
The motion must be filed in the circuit court if no notice of appeal has
been filed.84
If a notice of appeal has been filed, the motion must be filed in the
court of appeals.85
Within 20 days after the motion is served, the state public defender must
determine whether successor counsel will be appointed for the client,
and notify the court of its determination.86 Before granting
the motion to withdraw, the court shall consider the state public defender's
determination and whether the client waives the right to counsel.87
Ordinarily, a disagreement between the client and appointed counsel about
the merits of an appeal will not present grounds for withdrawal.88
When the motion to withdraw is filed in circuit court, the attorney must
prepare and serve a copy of the order determining the motion to withdraw
upon the client and the appellate intake unit in the Madison appellate
office of the state public defender.89 The order must be served within
14 days after the circuit court decides the motion to withdraw.90 The withdrawal procedure is not
intended to change existing law concerning when a withdrawal motion is
required.91 Review of circuit court order determining release from
custody pending appeal. The defendant or the state may seek review
of a circuit court order concerning release on bond pending seeking postconviction
relief or pending appeal.92 The motion must
be filed within 14 days after the entry of the circuit court order.93
The party seeking review must attach to the motion: a copy of the judgment
of conviction or other final judgment or order, a copy of the order regarding
release, the circuit court's statement of reasons for its release decision,
and the transcript of any release proceedings in the circuit court or
a statement explaining why no transcript is available.94 The opposing party
may file a response to the motion within 14 days after the motion is filed.95 No-merit procedure – when applicable. The no-merit
procedures are required only on direct appeal.96
A no-merit report must be filed when the client requests a no-merit report
or when the client declines to consent to have the appointed attorney
close the file without further representation by the attorney.97 No-merit procedure – notice of appeal, statement on transcript
and no-merit report. The notice of appeal must be identified as a
no-merit notice of appeal and must state the date on which the no-merit
report is due and how the date has been calculated.98 The no-merit notice of appeal, statement on transcript
and no-merit report must be filed either 180 days after the last transcript
is received,99
or 60 days after the entry of an order determining a postconviction motion.100
Copies of the transcript are not required for the other parties to the
appeal.101
Copies of the notice of appeal and statement on transcript must be served
on the state.102 No-merit procedure – copies of transcript and circuit court
case record for client. If a no-merit report is filed, the attorney
must serve copies of the transcript and the circuit court case record
on the client within 14 days after receiving a request from the client
for the copies.103 The attorney
must file a statement in the court of appeals that service of the copies
has been made upon the client.104 No-merit procedure – client counseling and notification
requirements, certification of compliance. Before filing a no-merit
report, the attorney must discuss with the client all potential issues
identified by the attorney and by the client, and the merit of an appeal
on these issues.105 The attorney
must inform the client that the client has three options: to have the
attorney file a no-merit report, to have the attorney close the file without
an appeal, or to have the attorney close the file and to proceed with
an appeal without an attorney or with another attorney retained at the
client's expense.106 The attorney must inform the client that a no-merit
report will be filed if the client requests it or if the client does not
consent to have the attorney close the file without further representation
by the attorney.107
The attorney must inform the client that, if a no-merit report is filed,
the attorney will serve a copy of the transcripts and the circuit court
case record on the client if the client so requests.108 The attorney
must inform the client that, if the client chooses to proceed with an
appeal or if the client chooses to have the attorney close the file without
an appeal, the attorney will forward the attorney's copies of the transcripts
and the circuit court case record to the client if the client so requests.109
The attorney must inform the client that the client may file a response
to the no-merit report, and that if the client files a response, the attorney
may file a supplemental no-merit report, and affidavit or affidavits containing
facts outside the record, possibly including confidential information,
to rebut allegations in the client's response to the no-merit report.110
Finally, the attorney must append to the no-merit report a signed certification
that the attorney has complied with these counseling and notification
requirements.111 A form for the certification is contained in the
new rule.112 No-merit procedure – response to no-merit report. If
a client files a response to the no-merit report, the clerk of the court
of appeals shall, within 5 days after the response is filed, send a copy
of the response to the attorney.113 No-merit procedure – supplemental no-merit report. If
the attorney is aware of facts outside the record that rebut allegations
in the client's response to the no-merit report, the attorney may file
a supplemental no-merit report and affidavit or affidavits including facts
outside the record.114
A supplemental no-merit report and affidavit or affidavits must be filed
and served on the client within 30 days after the attorney receives a
copy of the client's response to the no-merit report.115 The attorney
must file a statement in the court of appeals that service has been made
upon the client.116 No-merit procedure – remand to circuit court for fact-finding
prior to decision. If the client and the attorney allege disputed
facts regarding matters outside the record, and if the court of appeals
determines that the client's version of the facts, if true, would raise
an arguably meritorious issue for appeal, the court of appeals must remand
the case to the circuit court for an evidentiary hearing and fact-finding
on the disputed facts before deciding whether to accept or reject the
no-merit report.117
Summary of pending proposals
Appeal in ch. 980 (sexually violent person commitment) and
§ 971.17 (not guilty by reason of mental disease or defect commitment)
proceedings. The Judicial Council petitioned for a rule change allowing
these appeals to proceed under the criminal appellate rules set forth
in Wis. Stat. §§ 809.30-.32,
which govern other appeals (under ch. 48, 51, 55 and 938 and in criminal
cases) in which the state public defender provides representation. The
supreme court determined that this proposal exceeds its rule making authority,
and the Judicial Council has requested legislation to enact this proposal.
The Council's request for legislation would affect §§ 808.04(3) and (4),
809.30(1) and (2), 809.40(1) and create §§ 971.17(7m) and 980.061. The
supreme court has taken this proposal under advisement pending legislative
action. Suppression issues in ch. 48 and 938 cases. The Judicial
Council petition requested a rule allowing suppression of evidence issues
to be raised on appeal following an admission to a petition in a ch. 48
or 938 case. Under current law, these issues are waived by the entry of
an admission and must be preserved by taking the case to trial. The proposal
would extend the exception to the waiver rule in criminal cases to cases
under the children's and juvenile justice code. The supreme court determined
that this proposal exceeds its rule making authority, and the Judicial
Council has requested legislation to enact it. The legislation request
would create § 809.40(4). The supreme court has taken this proposal under
advisement pending legislative action. Tolling the time limit for filing a petition for review
in the supreme court while a motion for reconsideration is pending in
the court of appeals. The Judicial Council petition proposed a rule
that would toll the time limit for filing a petition for review until
the court of appeals disposes of a timely filed motion for reconsideration
of its opinion or order. The supreme court determined that this proposal
exceeds its rule making authority, and the Judicial Council has requested
legislation to enact it. The legislation request proposes amendments to
§§ 808.10, 809.62(1) and 809.32(4) and the creation of § 808.10(2). The
supreme court has also taken this proposal under advisement pending legislative
action. Mailbox rule – briefs deemed filed upon mailing. The
supreme court has deferred a decision on this Judicial Council proposal
until it decides State ex rel. Nichols v. Litscher, case no. 00-0853-W
(Issue: should Wisconsin adopt a "mailbox rule" whereby a petition for
review from a pro se prisoner would be deemed filed when the petition
is delivered to the prison authorities for mailing?). The Council's petition
proposed the creation of §§ 809.80(3)(b)-(5): a brief would be timely
filed if, on or before the last day for filing, the brief was deposited
in the U.S. mail for first class delivery or more expeditious means, or
if the brief was dispatched to a third-party commercial carrier for delivery
to the clerk within 3 calendar days. An affidavit of mailing or dispatch
would be required. A brief from a person in an institution would be timely
filed if, on or before the last day for filing, it was deposited in institution's
internal mail system. An affidavit or certification of mailing would be
required. The proposed rule would not apply to petitions for review.
Additional resources and
acknowledgements.
Additional materials and information about the revisions to the appellate
rules can be found at the State Bar of Wisconsin's Appellate
Practice Section web site
The Judicial Council Appellate Procedure
Committee members included the Hon. Ted E. Wedemeyer, Jr., Presiding Judge,
Court of Appeals, District I, co-chair; Marla J. Stephens, Director, Wisconsin
Public Defender Appellate Division, co-chair; Mary E. Burke, Director,
Wisconsin Department of Justice Criminal Appeals Unit; and Margaret Carlson,
Chief Staff Attorney, Court of Appeals. Advisory committee members, who
drafted, reviewed or suggested changes in the rules, were: Shelley A.
Grogan, Judicial Clerk to Judge Wedemeyer; Hon. Daniel P. Anderson, Judge,
District II Court of Appeals; Marilyn L. Graves, Clerk of Supreme Court
and Court of Appeals; Cornelia G. Clark, Clerk of Supreme Court and Court
of Appeals; Joseph M. Wilson, Supreme Court Commissioner; Matthew J. Frank,
Administrator, Wisconsin Department of Justice Legal Services Division;
Kenneth Lund, Deputy First Assistant, Wisconsin Public Defender Appellate
Division; Keith A. Findley, University of Wisconsin Law School; Robert
R. Henak, Henak Law Offices, S.C., for the Wisconsin Association of Criminal
Defense Lawyers; Patrick K. Stevens, Wisconsin Manufacturers & Commerce;
Lynn R. Laufenberg, Laufenberg Law Offices; Charles H. Barr, Croen & Barr,
for Milwaukee Bar Association Bench & Bar Court of Appeals Committee;
Thomas McAdams, Assistant District Attorney for Milwaukee County, for
Wisconsin District Attorney's Association; Robert D. Donohoo, Deputy District
Attorney for Milwaukee County; Werner E. Scherr, Kasdorf, Lewis & Sweitlik,
S.C.; Thomas M. Olson, S.C., The Law Center; Elizabeth Ewald Herrick,
Attorney at Law; and Donald L. Romundson, Godfrey & Kahn, S.C., for the
Appellate Practice Section, State Bar of Wisconsin. The Judicial Council
gratefully acknowledges their contributions.
Endnotes
1 Order No.
00-02, 2001 WI 39.
3 Wis. Stat.
§§ 809.30-.32.
4 Wis. Stat.
§§ 808.07(6)(motion objecting to sufficiency of surety for undertaking
costs due 14 days after service of copy of undertaking), 809.11(4)
and (5)(appellant's request for copies of transcript for other parties
to appeal and statement on transcript due 14 days after filing notice
of appeal), 809.13(party's response to petition for leave to intervene
in appeal due 11 days after service of petition), 809.14(1) and (2)(response
to motion seeking an order or other relief due 11 days after service
of motion, and motion for reconsideration of procedural order due
11 days after service of order), 809.19(7)(c)(non-party motion requesting
permission to file brief due 14 days after filing of respondent's
brief), 809.25(1)(c)(motion objecting to statement of costs due 11
days after service of statement), 809.32(4)(response to no-merit petition
for review due 14 days after service of supplemental petition), 809.41(1)
and (4)(respondents motion for three-judge panel due 14 days after
service of notice of appeal or with the response to a petition for
leave to appeal a non-final order, attorney general may file response
to motion for three-judge panel within 11 days after service in any
case in which the state is a party, respondents motion for hearing
in county of origin due 14 days after service of notice of appeal),
809.50(1) and (2)(petition for leave to appeal non-final judgment
or order due 14 days after entry of judgment or order, opposing party's
response to petition due within 14 days after service of petition),
809.51(2)(response to request for court to exercise supervisory jurisdiction
or original jurisdiction to issue a prerogative writ), 809.60(1) and
(2)(petition to bypass court of appeals and response to same), 809.62(3)(response
to petition for review), 809.70(2)(response to petition requesting
that supreme court take jurisdiction over original action due 14 days
after service of court order to file response).
5 Wisconsin
Judicial Council Note, 2001 following Wis. Stat. §§ 808.07(6).
6 Wis. Stat.
§ 809.10(1)(f).
7 Northridge
Bank v. Community Eye Care Ctr., 94 Wis. 2d 201, 203, 287 N.W.2d
810, 811 (1980) and Carrington v. St. Paul Fire & Marine Ins.
Co., 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267, 269 n.2 (1992).
8 Wis. Stat.
§ 809.11(4)(a) and (b).
9 Wis. Stat.
§ 809.11(7)(b).
10 Wis. Stat. § 809.11(5).
11 Wis. Stat. § 809.11(6).
12 Wis. Stat. § 809.11(7)(a).
13 Wis. Stat. §§ 809.105 and 809.107.
14 Wis. Stat. § 809.17(2m).
19 Wis. Stat. § 809.14(3)(a) and (b).
20
Wis. Stat. § 809.15(4)(c).
22 Wis. Stat. § 809.14(3)(b).
23
Wis. Stat. § 809.15(4)(c).
24 Wis. Stat. §§ 809.14(3)(c) and 809.82(2)(d).
25 Wis. Stat. § 809.19(8)(a)1. and 2.
26 Wis. Stat. §§ 809.19(8)(a)3 and 809.43(2).
27 Wis. Stat § 809.19(9).
28 Wis. Stat § 809.81(8).
29 Wis. Stat § 809.105(12).
30 Wis. Stat § 809.19(1)(h).
31 Wis. Stat § 809.19(1)(i).
32 Wis. Stat § 809.19(4).
33 Wis. Stat. § 809.19(8)(b)4.
34 Wis. Stat § 809.19(3)(a).
35 Wis. Stat § 809.19(4)(a).
36 Wis. Stat. § 809.19(6).
37 Wis. Stat. § 809.50(3).
38 Wis. Stat. § 809.19(10).
41 Wis. Stat. § 809.19(11).
43 Wis. Stat. § 808.075(8).
46 See Judicial Council Note, 2001 to Wis. Stat.
§ 808.075.
47 Wis. Stat. § 809.24(1).
52 Wis. Stat. § 809.24(2).
53 Wis. Stat. § 809.24(3).
54 Wis. Stat. § 809.24(4).
55 Wis. Stat. § 809.82(2)(e).
56 Wis. Stat. § 809.26(1).
57 Wis. Stat. § 809.62(4).
59 Wis. Stat. § 809.83(2).
60 Wis. Stat. § 809.107(4).
62 Wis. Stat. § 809.107(5)(a).
63 Wis. Stat. § 809.107(5)(b).
64 Wis. Stat. § 809.107(5)(c).
65 Wis. Stat. § 809.107(5)(d).
66 Wis. Stat. § 809.107(5)(e).
67 Wis. Stat. § 809.107(5m).
72 Wis. Stat. § 809.107(6)(am).
75 Wis. Stat. § 809.30(3)(e).
77 Wis. Stat. § 809.30(3)(f).
78 Wis. Stat. §§ 809.30(2)(g) and 967.06.
79 Wis. Stat. § 809.10(1)(b)5.
80 Wis. Stat. § 809.10(1)(b)6.
81 Wis. Stat. § 809.30(2)(h).
82 Wis. Stat. § 809.30(2)(i).
83 Wis. Stat. § 809.30(4)(a).
86 Wis. Stat. § 809.30(4)(b).
87 Wis. Stat. § 809.30(4)(c).
88 See Judicial Council Note, 2001 following Wis.
Stat. § 809.30(4):
Judicial Council Note, 2001:
...
Subsection (4) establishes
a procedure for making and determining motions to withdraw by appointed
counsel. This rule does not change existing law concerning when a
withdrawal motion is necessary. See e.g. State ex rel. Flores
v. State, 183 Wis. 2d 587, 622-24, 516 N.W.2d 362 (1994).
Often motions to withdraw
are the result of a disagreement between appointed counsel and the
defendant, sometimes inaccurately called a "conflict," about
the existence of a meritorious issue for appeal, or about the manner
in which any such issue should be raised. It is counsel's duty to
decide what issues in a case have merit for an appeal. Jones v.
Barnes, 463 U.S. 745 (1983). Postconviction counsel is entitled
to exercise reasonable professional judgment in winnowing out even
arguable issues in favor of others perceived to be stronger. Id.
Counsel's failure to raise an issue on direct appeal may prevent the
defendant from raising it in a subsequent s. 974.06 collateral review
proceeding, absent "sufficient reason." State v. Escalona-Naranjo,
185 Wis. 2d 168, 517 N.W.2d 157 (1994).
The rules of appellate
procedure require that a defendant choose whether to proceed with
the assistance of appointed counsel or proceed pro se. State v.
Redmond, 203 Wis. 2d 13, 552 N.W.2d 115 (Ct. App. 1996). A defendant
has neither the right to appointed counsel of choice nor the right
to insist that a particular issue be raised. Oimen v. McCaughtry,
130 F.2d 809 (7th Cir. 1997). "The defendant may terminate appellate
counsel's representation and proceed pro se or the defendant
may allow postconviction relief to continue based on counsel's brief
and then seek relief on the grounds of ineffective assistance of appellate
counsel." State v. Debra A.E., 188 Wis. 2d 111, 137-39,
523 N.W.2d 727 (1994). On ineffective assistance of appellate counsel
claims, the court will determine whether counsel's choice of issues
met the objective standard of reasonableness. Gray v. Greer,
778 F.2d 350 (7th Cir. 1985).
The state public defender
will not appoint successor counsel where a defendant disagrees with
the legal conclusions of appointed counsel or when a defendant wants
a second opinion as to the merits of an appeal. To do so would unduly
delay the disposition of the appeal, and would be contrary to the
interests of justice. Wis. Admin. Code § PD
2.04.
If a defendant elects
to waive counsel and proceed pro se, the court must find that
the defendant has been provided with clear warnings with respect to
forfeiture of the right to counsel and the dangers of self-representation.
State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996).
89 Wis. Stat. § 809.30(4)(d).
91 See Judicial Council Note, 2001 following Wis.
Stat. § 809.30(4) and State ex rel. Flores v. State, 183 Wis.
2d 587, 622-24, 516 N.W.2d 362 (1994).
92 Wis. Stat. § 809.31(5).
96 Wis. Stat. § 809.32(1)(a).
98 Wis. Stat. § 809.32(2).
99 Wis. Stat. § 809.32(2)(a).
100 Wis. Stat. § 809.32(2)(b).
101 Wis. Stat. § 809.32(2).
103 Wis. Stat. § 809.32(1)(d).
105 Wis. Stat. § 809.32(1)(b)1.
107 Wis. Stat. § 809.32(1)(b)2.
110 Ibid. Also see Judicial Council Note, 2001 following
Wis. Stat. § 809.32:
Judicial Council Note, 2001:
...
Subsection (1) (f) was created to allow the attorney to reply to
the defendant's response to a no-merit report. The rule allows the
attorney to file a supplemental no-merit report and affidavit(s) disclo
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