809.32 and 809.62.” Judicial Council Committee Comment, July 2008: The amendment to s. 809.30 (2) (b) allows a notice of intent that is filed too early to be deemed filed on
May 22, 2026, are designated by NOTES. (Published 5-22-26)
809.30
RULES OF APPELLATE PROCEDURE
the date that a judgment and sentence or other final adjudication is filed. This is consistent with the procedure applicable to civil appeals under s. 808.04 (8). [Re Order No. 08-04 effective January 1, 2009] The court of appeals did not abuse its discretion in refusing to allow a convicted felon to pursue a late appeal. State v. Argiz, 101 Wis. 2d 546, 305 N.W.2d 124 (1981). The limitation period under sub. (1) (f) [now sub. (2) (h)] cannot begin to run until the entry of an appealable order. T.T. v. M.T., 108 Wis. 2d 410, 321 N.W.2d 289 (1982). For issues on appeal to be considered matters of right, postconviction motions must be made except in challenges to sufficiency of the evidence under s. 974.02 (2). State v. Monje, 109 Wis. 2d 138, 325 N.W.2d 695 (1982). Because double jeopardy precludes retrial if an appellate court finds a conviction is not supported by sufficient evidence, the court must decide a claim of insufficiency even if there are other grounds for reversal that would not preclude retrial. State v. Ivy, 119 Wis. 2d 591, 350 N.W.2d 622 (1984). The court may for good cause grant extensions under this section. State v. Harris, 149 Wis. 2d 943, 440 N.W.2d 364 (1989). A defendant unable to assist counsel or make decisions committed by law to the defendant with a degree of rational reasoning is incompetent to pursue postconviction relief. Discussing the process to be followed when a competency issue arises. State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994). If a defendant is represented by counsel, the defendant is statutorily barred from proceeding pro se during the pendency of an appeal. State v. Redmond, 203 Wis. 2d 13, 552 N.W.2d 115 (Ct. App. 1996), 94-1544. A criminal defendant may bring a motion under sub. (2) (h) for a new trial based on newly-discovered evidence. The defendant has the burden of establishing the five criteria enumerated by the court by clear and convincing evidence. State v. Brunton, 203 Wis. 2d 195, 552 N.W.2d 452 (Ct. App. 1996), 95-0111. When a criminal appeal is taken from a plea bargain, it brings the entire judgment before the appellate court. When a plea bargain is negated, the proper disposition is to remand the cause for further proceedings on the original charges. State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998), 97-1558. A defendant subject to a post-probation revocation sentence cannot use this section and s. 973.19 (1) (b) to raise issues that go to the original judgment, but the defendant may take a direct appeal from a subsequent judgment in order to fully litigate issues initially raised by the resentencing. State v. Scaccio, 2000 WI App 265, 240 Wis. 2d 95, 622 N.W.2d 449, 99-3101. Section 973.195 creates a separate and specific statutory procedure for requesting a sentence reduction that should be used in place of this section whenever the basis for the modification is a change in law or procedure related to sentencing effective after the inmate was sentenced that would have resulted in a shorter term of a confinement. State v. Torres, 2003 WI App 199, 267 Wis. 2d 213, 670 N.W.2d 400, 030233. Neither sub. (4) or other law requires that a motion to withdraw be filed any time an attorney appointed by the public defender terminates the attorney’s postconviction/appellate representation of a defendant. Counsel for the defendant did not render ineffective assistance by closing counsel’s file without first obtaining court permission to withdraw or otherwise seeking a contemporaneous judicial determination that the client had knowingly waived either the right to appeal or the right to counsel. State ex rel. Ford v. Holm, 2004 WI App 22, 269 Wis. 2d 810, 676 N.W.2d 500, 02-1828. When a defendant seeks modification of the sentence imposed at resentencing, sub. (2) and s. 973.19 require the defendant to file a postconviction motion with the circuit court before taking an appeal. These rules on sentence modification apply even though the sentence imposed at resentencing is identical to a previous sentence and regardless of whether a defendant challenges the original sentence, a sentence after revocation, or the sentence imposed at resentencing. State v. Walker, 2006 WI 82, 292 Wis. 2d 326, 716 N.W.2d 498, 04-2820. If a defendant does not want a no-merit report, the defendant has three choices: 1) fire counsel and proceed pro se; 2) fire counsel and hire private counsel if financially feasible; or 3) direct that the file be closed. A defendant cannot: 1) insist that appointed counsel pursue an advocacy appeal under this section despite counsel’s view that an appeal would lack arguable merit; 2) alternatively insist on different appointed counsel who will write a brief the way the defendant wants it written; or 3) forbid appointed counsel from filing a no-merit report and then claim that counsel has abandoned the defendant when counsel moves to withdraw from representation. State ex rel. Van Hout v. Endicott, 2006 WI App 196, 296 Wis. 2d 580, 724 N.W.2d 692, 04-1192. Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and on appeal, but no right to counsel at a postconviction proceeding in the circuit court, which is often the precursor to an appeal. However, a defendant does not have the right to be represented by: 1) an attorney the defendant cannot afford; 2) an attorney who is not willing to represent the defendant; 3) an attorney with a conflict of interest; or 4) an advocate who is not a member of the bar. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867. The court in which an alleged ineffective assistance of counsel occurred is the proper forum in which to seek relief unless that forum is unable to provide the relief necessary to address the ineffectiveness claim. The remedy for an attorney’s failure to file a notice of intent to pursue postconviction relief is an extension of the timeframe to file the notice. Because the circuit court is without authority to extend the deadline to file a notice of intent to pursue postconviction relief, the proper forum lies in the court of appeals. State ex rel. Kyles v. Pollard, 2014 WI 38, 354 Wis. 2d 626, 847 N.W.2d 805, 12-0378. The fact that a defendant was deemed competent to stand trial should not create a presumption that the defendant is competent at a later date when the same defendant pursues postconviction relief. State v. Daniel, 2015 WI 44, 362 Wis. 2d 74, 862 N.W.2d 867, 12-2692. There is no statute directly governing postconviction competency proceedings, but courts will look to s. 971.14 for guidance. Once a defense attorney raises the is-
Updated 23-24 Wis. Stats.
26
sue of competency at a postconviction hearing, the burden is on the state to prove by a preponderance of the evidence that the defendant is competent to proceed. State v. Daniel, 2015 WI 44, 362 Wis. 2d 74, 862 N.W.2d 867, 12-2692. Before a circuit court can require a non-dangerous but incompetent defendant to be involuntarily treated to competency in the context of postconviction proceedings, the circuit court must follow the procedure established in Debra A.E., 188 Wis. 2d 111 (1994). Debra A.E. fashioned a mandatory process for managing postconviction relief of allegedly incompetent defendants. If this process is followed, a court order for treatment to restore competency will ordinarily be unnecessary because meaningful postconviction relief can be provided even though a defendant is incompetent. In this case, the circuit court acted prematurely by ordering that the defendant be medicated to competency without determining whether and to what extent postconviction proceedings could continue despite the defendant’s incompetency. State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, 16-2017. When a postconviction motion under this section is denied in part and granted in part such that further proceedings are required, an appeal cannot be taken until the further proceedings are completed. State v. Wolfe, 2019 WI App 32, 388 Wis. 2d 45, 931 N.W.2d 298, 18-2268. Sentence Modification by Wisconsin Trial Courts. Kassel. 1985 WLR 195. The Decision to Appeal a Criminal Conviction: Bridging the Gap Between the Obligations of Trial and Appellate Counsel. Monkmeyer. 1986 WLR 399. The decision to appeal: The role of trial counsel under the new rules of criminal appellate procedure. Kempinen. WBB Aug. 1985.