State v. Ebert
| Citation | 154 Wis.2d 870,455 N.W.2d 679 |
| Decision Date | 22 February 1990 |
| Docket Number | No. 89-1948,89-1948 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. James W. EBERT, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from an order of the circuit court for Sauk county: JAMES R. SEERING, Judge.
Circuit Court, Sauk County.
AFFIRMED.
Before EICH, C.J., and DYKMAN and SUNDBY, JJ.
James W. Ebert, a prison inmate appearing pro se, appeals from an order denying his postconviction motion, brought under sec. 974.06, Stats., seeking relief from his conviction on grounds relating to the alleged misconduct of the prosecutor during the closing arguments at his trial.
Ebert raises a single issue on appeal: whether the failure to report the prosecutor's closing argument denied him the right to appeal the conviction in violation of his due process rights under the United States and Wisconsin Constitutions. We reject the argument and affirm the order.
In 1985, Ebert was convicted of armed robbery while concealing identity (one count), false imprisonment (four counts) and possession of a firearm (one count). His motion for postconviction relief was denied and he appealed the judgment of conviction and the order denying his postconviction motion to this court. We affirmed the judgment and order in a per curiam opinion, State v. Ebert, No. 86-0675-CR (Wis.Ct.App. Feb. 5, 1987), and the supreme court denied Ebert's petition for review.
On October 7, 1987, Ebert filed a motion for postconviction relief under sec. 974.06, Stats. The motion made no mention of any of the grounds on which he bases his present sec. 974.06 motion. Ebert eventually sought voluntary dismissal, but the trial court refused the request and proceeded to deny the motion on its merits.
In January, 1989, Ebert filed the motion that is the subject of this appeal. The trial court did not rule on the motion. It was denied by operation of law when no decision was issued within sixty days. Sec. (Rule) 809.30(2)(i), Stats. Ebert appealed, and he has elected not to file any transcript of the trial or other proceedings in the case.
Section 974.06, Stats., the section under which Ebert's motion was filed, provides in subsection (4) that:
All grounds for relief available to a prisoner under this section must be raised in his original, supplemental or amended motion. Any ground finally adjudicated or not so raised ... in the proceeding that resulted in the conviction ... may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.
In State ex rel. Dismuke v. Kolb, 149 Wis.2d 270, 273, 441 N.W.2d 253, 254 (Ct.App.1989), we recognized that sec. 974.06, Stats., "does not ... create an unlimited right to file successive motions for relief." Noting that the legislative intent underlying the state was "to compel a prisoner to raise all questions available to him [or her] in one motion," we held that where an appellant's second motion fails to explain why he or she did not assert the "new" ground in the previous motion, it should be denied. Id. at 273-74, 441 N.W.2d at 254. This is consistent with cases from other jurisdictions in which similar rules exist--"that a prisoner's failure to assert a particular ground for relief in an initial postconviction motion bars the prisoner's assertion of the ground in a later motion, in the absence of justification for the omission." Id. at 274, 441 N.W.2d at 254, citing Palmer v. Dermitt, 635 P.2d 955, 959 (Idaho 1981); Cuevas v. State, 372 N.W.2d 284, 286 (Iowa Ct.App.1985); and State v. Lueder, 267 N.W.2d 555, 557 (N.D.1978).
Ebert has made no attempt to explain why he did not assert in his earlier sec. 974.06, Stats., motion the grounds upon which he now seeks relief, nor can we determine from his brief or the record before us whether any such reason exists. As a result, the trial court's order should be affirmed.
As we have noted, Ebert appears in this action without counsel. In such cases, we will sometimes consider an argument that we would otherwise not in order "to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2nd Cir.1983). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). We elect to do so here, although it does not change the result.
In essence, Ebert's claim is that he was denied the right to appeal guaranteed to him by the due process provisions of the state and federal constitutions because the prosecutor's closing arguments--during which the alleged misconduct is said to have occurred--were not reported. The claim is based on Ebert's assertion that the prosecutor, during rebuttal closing argument, produced and exhibited to the jury a pair of blue jeans appearing to be those shown in an automatic-camera photograph as being worn by one of the robbers during commission of the crime. Ebert contends that the prosecutor identified the blue jeans as belonging to him (Ebert), and he argues that because the...
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