Neely v. State, 77-499
| Decision Date | 30 May 1979 |
| Docket Number | No. 77-499,77-499 |
| Citation | 89 Wis.2d 755,279 N.W.2d 255 |
| Parties | Robert J. NEELY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. CR. |
| Court | Wisconsin Supreme Court |
Richard L. Cates, State Public Defender, and Steven P. Weiss, Asst. State Public Defender, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., for defendant in error.
The State of Wisconsin has petitioned for review of the decision of the court of appeals that affirmed Robert J. Neely's judgment of conviction for first degree murder. That decision is published in Neely v. State, 86 Wis.2d 304, 272 N.W.2d 381 (1978).
The state seeks review of the court of appeals decision, even though it was favorable to the state, because the state disagrees with the rationale of the opinion on one issue. Neely contended that on the basis of his fifth amendment right protecting him against self-incrimination he did not have to answer certain questions on cross-examination because those questions related to incidents for which he faced armed robbery and burglary charges in another case. The court of appeals held that Neely was required to answer the questions on cross-examination because by testifying on direct examination Neely had waived his fifth amendment rights for purposes of the murder trial. However, the court of appeals also held that as to any cross-examination answers relating to the armed robbery and burglary incidents Neely was entitled to a limited use immunity so that his answers on cross-examination could not be used against him in a subsequent trial for burglary and armed robbery. The court of appeals explained that to avoid waiving his privilege for the subsequent trials the defendant need only file an appropriate and timely motion at that time the incriminating questions are asked. The state contends that the court of appeals erred in creating a limited use immunity.
The state does not challenge the court of appeals affirmance of Neely's judgment of conviction; the state only disagrees with the court of appeals rationale on the one issue. Neely argues that the state cannot petition for review of a favorable decision. Neely contends that because the state was the prevailing party the decision of the court of appeals is not adverse to the state and therefore under Rule 809.62(1) the state cannot petition for review. Neely argues that for policy reasons the prevailing party should not be able to appeal from a favorable decision because the decision in the court of appeals must be treated with a presumption of finality; and because granting an appeal to a prevailing party would encourage continued litigation after the end of the real dispute and the litigation would be solely for law reform since the controversy between the parties would have been determined by the decision of the court of appeals. Neely also argues that in this case there is no reason for the state to petition for review because Neely has petitioned for review and his petition is sufficient to permit this court to review the decision rendered by the court of appeals. Neely contends that his petition for review is adequate to resolve any questions of law presented by the state. 1
Regardless of the policy involved, the state or any other prevailing party in the court of appeals is not authorized by the statutes and the...
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State v. Wyss
...was not adverse to him under Rule 809.62(1). Consequently, the defendant stated that it was his understanding of Neely v. State, 89 Wis.2d 755, 279 N.W.2d 255 (1979), that he could not petition for cross-review on his alleged claims of error which were denied by the court of appeals. Howeve......
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State v. Pico
...from which the person filing the notice intends to appeal and the date on which it was entered."); see also Neely v. State, 89 Wis. 2d 755, 758, 279 N.W.2d 255 (1979) (per curiam) (explaining that "[t]he word decision, as used in the statutes and the rules, refers to the result (or disposit......
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State v. Perry
...sentence appearing in the judgment, is one which is likely to recur, we address it, although, under the teachings of Neely v. State, 89 Wis.2d 755, 279 N.W.2d 255 (1979), Perry, as a party not aggrieved by the decision of the court of appeals, does not have the right to have an issue review......
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State v. Stuart
...Although this rule requires our decisions to be in writing, nothing in the rule mandates that we give reasons. See Neely v. State, 89 Wis. 2d 755, 758, 279 N.W.2d 255 (1979) ("The word decision, as used in the statutes and the rules, refers to the result (or disposition or mandate) reached ......