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Vol. 72, No. 12, December
1999 |
Court of Appeals Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Appellate Procedure | Commercial
Law |
| Criminal Law | Criminal Procedure
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| Employment Law | Family
Law | Fireworks |
| Insurance | Open
Meetings Law | Torts |
Appellate Procedure
Interlocutory Orders - Cross-appeal
Fedders v. American
Family Mut. Ins. Co., No. 99-1526 (filed 22 Sept. 1999)
(ordered published 25 Oct. 1999)
This case presented the following novel issue: "May a
party cross-appeal as of right any interlocutory order in an
action once leave to appeal has been granted?" In this case
the cross-appellants argued that under Rule
809.50(3) of the Wisconsin Statutes, they acquired the right
of a respondent to file a notice of cross-appeal under Rule
809.10(2)(b) once leave to appeal was granted. The right
extended, they argued, to any other interlocutory order.
In a per curiam decision, the court of appeals rejected the
argument and dismissed the cross-appeal. "Rule
809.50(3) does not have the effect of turning the interlocutory
judgment or order on which leave to appeal is granted into a
final judgment or order from which the respondent may cross-appeal
as a matter of right. ... Therefore, once leave to appeal is
granted, a cross-appeal from the same interlocutory order or
judgment or any other interlocutory order or judgment in the
action requires a petition for leave to appeal."
Commercial Law
Leases - Unconscionability - Venue Provision
First Federal Financial
Serv. Inc. v. Derrington Chevron Inc., No. 98-2763 (filed
22 Sept. 1999) (ordered published 25 Oct. 1999)
In this case the court held unconscionable a forum clause
in a finance lease. The lessees owned a service station in California
and entered into a relationship with a California firm that supplied
security surveillance equipment. Although the husband wanted
to pay cash, the supplier persuaded him to lease the equipment.
When the equipment arrived several days later, his wife signed
what she thought was an "okay for the equipment" but
which actually was the lease. The back page of the document contained
16 provisions in small print, including one conferring jurisdiction
in Waukesha, Wis. Two weeks later the equipment failed to function.
When the supplier failed to fix it and the finance lessor, FFF,
said that it "didn't care," the lessees stopped
payment. The circuit court held that the Waukesha forum clause
was unconscionable.
The court of appeals, in a decision authored by Judge Brown,
affirmed. The only basis for jurisdiction in Wisconsin was the
lease clause. Indeed the lessor's existence was buried deep
in the small print and it was reasonable for the wife to conclude
that she was merely signing an "acknowledgement of installation,"
not a lease. The lessor, FFF, "peddles" its leases
nationwide. The court opined that FFF "cannot sit in its
offices in southeastern Wisconsin and expect [lessees] from across
the country to march to Waukesha county to defend themselves
from collection actions." The only party that got a deal
was FFF - "it was guaranteed a home court while [the
lessees] were stuck with security equipment that did not work
and a lawsuit in ... Wisconsin."
Criminal Law
Failure to Pay Child Support - Statute of Limitations
State v. Monarch,
No. 99-1054-CR (filed 21 Sept. 1999) (ordered published 25 Oct.
1999)
The defendant was charged with numerous felony counts of failing
to pay child support. The charges emanated from his alleged failure
to pay court-ordered child support arrears from 1993 to 1998.
He was originally ordered to pay support under a 1977 divorce
agreement. That obligation ended in 1985 when his youngest child
attained majority. Since 1990 he has been subject to an "arrearages
only" order. However, with the exception of one payment
in 1998, he made no payments from 1993 through 1998.
The defendant moved to dismiss the charges, contending that
his 1998 prosecution for failure to pay child support arrears
accumulated from 1977 to 1985 should be dismissed because it
is barred by the six-year statute of limitations. In a decision
authored by Judge Hoover, the court of appeals disagreed.
Wis. Stat. section
948.22(2) provides that any person who intentionally fails
for 120 or more consecutive days to provide child support that
the person knows or reasonably should know the person is legally
obligated to provide is guilty of a Class E felony. A prosecutor
may charge a person with multiple counts for a violation under
this subsection if each count covers a period of at least 120
consecutive days and there is no overlap between periods.
The defendant argued that his crime was complete more than
six years ago because the definition of child support only applies
to current support. The court of appeals rejected this argument.
The definition of child support in the statute makes no distinction
between current and past support. In fact, a crime is committed
only when an arrearage develops. The essence of the offense is
failing to pay support for at least 120 days. The crime is complete
after each 120-day period during which the defendant intentionally
fails to pay child support and continues until he or she no longer
intentionally fails to pay that support. The statute of limitations
begins to run from the end of each 120-day period.
Because the defendant is alleged to have intentionally failed
to provide for the support of a child within the six years preceding
the current prosecution, the statute of limitations is not a
defense. The current age of the child (who in this case reached
majority in 1985) is immaterial to this analysis.
Criminal Procedure
Plea Negotiations - Enforcement of Agreements
by Specific Performance
State v. Scott,
No. 98-2109-CR (filed 29 Sept. 1999) (ordered published 25 Oct.
1999)
The defendant reached a plea agreement with the state under
which he pled no contest to and was found guilty of several offenses.
The plea agreement restricted the state's sentencing recommendation.
At the sentencing hearing, the state was permitted to withdraw
from the agreement. Later, it advanced a modified sentencing
proposal that afforded the state the ability to recommend a significantly
longer sentence. The defendant agreed to the new proposal and
thereafter was sentenced to prison.
The defendant then sought resentencing on the ground that
his trial counsel provided ineffective assistance by failing
to advise him that he had a right to seek enforcement of the
original plea agreement under which he entered his no contest
pleas. The circuit court denied relief. In a majority opinion
authored by Judge Langhoff (sitting by special assignment pursuant
to the Judicial Exchange Program), the court of appeals reversed.
Prior to the time the defendant entered his no contest plea,
the plea agreement between the parties was wholly executory.
Each party had an opportunity to withdraw from or modify the
plea agreement. Where a plea agreement has been reached and the
criminal defendant has not entered pleas of guilty or no contest,
he or she may seek enforcement of the agreement only upon affirmatively
demonstrating detrimental reliance. Absent detrimental reliance
on the bargain, the defendant has an adequate remedy by being
restored to the position occupied prior to the agreement.
A detrimental reliance need not be demonstrated where a plea
agreement has been reached and a guilty or no contest plea has
been entered. After a prosecutor induces a plea pursuant to a
plea agreement, the prosecutor is required to carry out his or
her part of the bargain.
In this case defense counsel assumed that the only choices
available to the defendant were withdrawing his pleas or assenting
to the state's revised proposal made after the defendant
had already entered his no contest pleas. Defense counsel failed
to advise the defendant that he could elect to pursue a third
option, namely, specific performance of the plea agreement pursuant
to which he had entered his no contest pleas. The court concluded
that this was deficient performance that resulted in prejudice
to the defendant.
Accordingly, the court of appeals reversed the circuit court
and granted the defendant's request for a new sentencing
hearing requiring the state to adhere to the terms of the plea
agreement as it existed when the no contest pleas were entered.
Judge Nettesheim filed an opinion concurring in part and dissenting
in part.
Probation - Revocation to be Initiated by
Department of Corrections
State v. Burchfield,
No. 99-0716-CR (filed 1 Sept. 1999) (ordered published 25 Oct.
1999)
The defendant was convicted of delivering cocaine and was
sentenced to prison. The trial court stayed the prison sentence
and ordered the defendant to serve a term of probation. The probation
agent subsequently requested a trial court probation review and
the possible imposition of conditional jail time because of probation
violations. Following a hearing the trial court ordered that
probation be revoked.
The defendant appealed the order revoking his probation because
the revocation was not initiated by the Department of Corrections
(DOC). He argued that under Wis. Stat. section
973.10(2) a sentencing court has no authority to revoke probation.
In a decision authored by Judge Snyder, the court of appeals
agreed and reversed the order. It concluded that the statute
prohibits judicial revocation of probation by trial courts. The
appellate court relied in part on the decision in State
v. Horn, 226 Wis. 2d 637, 594 N.W.2d 772 (1999), which
it believed supported the defendant's contention that the
executive branch (here DOC) has exclusive statutory authority
to administer and to revoke probation.
Motion to Withdraw Guilty Plea After Original Sentence Vacated
- "Fair and Just Reason" Standard to be Applied
State v. Manke,
No. 98-2545-CR (filed 8 Sept. 1999) (ordered published 25 Oct.
1999)
The defendant entered a plea of no contest to a charge of
recklessly endangering safety and was sentenced to five years
in prison. After sentencing he moved to withdraw his plea or,
alternatively, to be resentenced before a different judge. He
argued that he was entitled to withdraw his plea because the
state had breached the plea agreement by recommending incarceration
at the sentencing hearing when it had promised to "stand
silent" with regard to disposition. The circuit court agreed
and ordered that the defendant be resentenced before a new judge.
Before the new judge, the defendant moved to withdraw his plea
of no contest. The judge granted that motion after applying the
"fair and just reason" standard.
The issue before the court of appeals was whether the "fair
and just reason" standard was properly applied in this case.
This standard is used when a defendant moves to withdraw his
or her plea prior to sentencing. After sentencing, the more onerous
"manifest injustice" standard is applied to motions
to withdraw pleas.
In a decision authored by Judge Anderson, the court of appeals
affirmed. Because the original sentence had been vacated, the
court concluded that the circuit judge properly applied the presentencing
standard of "fair and just reason" to the defendant's
plea withdrawal motion.
Search and Seizure - Unoccupied Premises - No-knock
Entry
State
v. Moslavac, No. 98-3037-CR (filed 1 Sept. 1999) (ordered
published 25 Oct. 1999)
The court of appeals, in a decision authored by Judge Nettesheim,
affirmed orders denying the defendant's challenge to the
legality of the searches and seizures in this case. The court
addressed two issues. First, it held that police can forcibly
execute a search warrant against a premises when the occupant
is absent. The entry, of course, must be reasonable under the
circumstances. Second, the court held that "[t]he police
are not required to knock and announce prior to executing a search
warrant against unoccupied premises." If they don't
so announce, however, the police are taking the risk that someone
might in fact be present and have standing to challenge the entry.
Search and Seizure - Automobile - Marijuana Odor
State
v. Mata, No. 98-2895-CR (filed 22 Sept. 1999) (ordered
published 25 Oct. 1999)
The defendant, Mata, was charged after police discovered marijuana
in his automobile. The trial court denied his motion to suppress.
The court of appeals, in an opinion authored by Judge Nettesheim,
affirmed. The sole issue on appeal was "whether a police
search of a passenger in a motor vehicle based solely on the
odor of marijuana is reasonable." Earlier cases, including
a 1999 supreme court decision, did not specifically address the
reasonableness of searches based on odor where there are several
people in the vehicle. Although prior cases "arguably"
conflicted, the court found probable cause based on the record
in this case. Here the police had searched the other two occupants
and found nothing before they got to the defendant: "under
the particular circumstances of this case, the odds of Mata
possessing the suspected marijuana had increased - not diminished."
(Emphasis original.) The court also rejected arguments sounding
in Knowles
v. Iowa, 525 U.S. 113 (1998) (searches of vehicles stopped
only for traffic violations), and the Terry doctrine.
Restitution - Evidentiary Hearing - Fact of Damage
State
v. Madlock, No. 98-2718-CR (filed 1 Sept. 1999) (ordered
published 25 Oct. 1999)
The defendant appealed from an order denying his motion to
vacate the restitution provision of a conviction judgment. He
claimed the trial court erred by not holding an evidentiary hearing
on the appropriate amount of restitution, if any.
The court of appeals, in an opinion written by Judge Nettesheim,
reversed. The court's analysis proceeded under the general
restitution statute, section
973.20. It conceded that "in most cases the facts in
support of the criminal conviction, coupled with the statutory
presumption of restitution, will allow for a restitution order."
This happened, however, to be one of those "rare cases where
that result does not automatically flow." The restitution
statutes permit evidentiary hearings. They speak directly to
the amount of restitution, but "they also apply to a situation
where the propriety of restitution is challenged in the first
instance." The hearings are informal, not "a full-blown
civil trial." The record in this case failed to establish
the fact or nature of the damage or the nexus between the damage
and the defendant's conduct. The matter was remanded for
an evidentiary hearing.
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