State v. Elam, 94-1050-CR
| Decision Date | 04 October 1995 |
| Docket Number | No. 94-1050-CR,94-1050-CR |
| Citation | 195 Wis.2d 683,538 N.W.2d 249 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. John Fitzgerald ELAM, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant there were briefs and oral argument by Richard D. Martin, Assistant State Public Defender.
For the plaintiff-respondent the cause was argued by Paul Lundsten, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
The court is equally divided on whether to affirm or reverse the judgment of the Circuit Court for Milwaukee County, Jeffrey A. Wagner, Judge. Chief Justice Roland B. Day, Justices Donald W. Steinmetz and Janine P. Geske would affirm. Justices Shirley S. Abrahamson, William A. Bablitch and Ann Walsh Bradley would reverse. Justice Jon P. Wilcox did not participate.
This court accepted jurisdiction over this appeal on a petition to bypass. Wis.Stat. § (Rule) 809.60 (1993-94). We have previously stated that when a tie vote occurs in this court on a bypass or certification, "justice is better served in such an instance by remanding to the court of appeals for their consideration." State v. Richard Knutson, Inc., 191 Wis.2d 395, 396-397, 528 N.W.2d 430 (1995).
We do not remand this appeal to the court of appeals because the court of appeals has already decided the issue presented in this appeal, namely whether Wis.Stat. § 973.012 (1993-94) prohibits a defendant from basing an appeal on a sentencing court's failure to take sentencing guidelines into consideration. In State v. Halbert, 147 Wis.2d 123, 131-32, 432 N.W.2d 633 (Ct.App.1988), the court of appeals held that a sentencing court's failure to consider the sentencing guidelines is not subject to appellate review.
When this very issue came to this court in State v. Speer, 176 Wis.2d 1101, 501 N.W.2d 429 (1993), three justices, Chief Justice Nathan S. Heffernan, Justices Shirley S. Abrahamson and William A. Bablitch, opined that Halbert should be overruled, while three justices, Justices Roland B. Day, Donald W. Steinmetz and Louis J. Ceci, concluded that Halbert is good law.
A general principle of appellate practice is that a majority of the participating judges must have agreed on a particular point for it to be considered the opinion of the court. State v. Dowe, 120 Wis.2d 192, 194-95, 352 N.W.2d 660 (1984) (Per Curiam) (). Accordingly, the court concludes that Halbert was not overruled by Speer; Halbert is precedential.
The court of appeals has referred to the sentencing guideline portion of the Speer decision a number of times. In no case has the court of appeals stated that Speer overruled...
To continue reading
Request your trial
-
State v. Lechner
...court did not follow the sentencing guidelines did not give the defendant a right to appeal his sentence. See State v. Elam, 195 Wis.2d 683, 685, 538 N.W.2d 249 (1995)(per curiam); Wis. Stat. § 973.012. ¶56 Although the inaccuracy in the presentence report resulted in a miscalculation of th......
-
Vivid, Inc. v. Fiedler
...the opinion of the court on that issue. See State v. Dowe, 120 Wis.2d 192, 194, 352 N.W.2d 660 (1984); see also State v. Elam, 195 Wis.2d 683, 685, 538 N.W.2d 249 (1995); State v. Outlaw, 108 Wis.2d 112, 321 N.W.2d 145 (1982); Greiten v. LaDow, 70 Wis.2d 589, 235 N.W.2d 677 (1975); State v.......
-
New Richmond News v. City of New Richmond
...Wis.2d 395, 396–97, 528 N.W.2d 430 (1995) (remanding to court of appeals on a tie vote on certification); see also State v. Elam, 195 Wis.2d 683, 684–85, 538 N.W.2d 249 (1995) (restating rule but declining to remand to court of appeals on a tie vote on bypass because court of appeals had pr......
-
Tetra Tech EC, Inc. v. Wis. Dep't of Revenue
...presented in Section II.B of the majority/lead opinion and the conclusions presented in Section III. See State v. Elam, 195 Wis.2d 683, 685, 538 N.W.2d 249 (1995) (explaining that "a majority of the participating judges must have agreed on a particular point for it to be considered the opin......
-
THE DEMISE OF THE LAW-DEVELOPING FUNCTION: A CASE STUDY OF THE WISCONSIN SUPREME COURT.
...the United States Supreme Court's treatment of plurality opinions in applying the holdings of that Court."). (130) State v. Fitzgerald, 538 N.W.2d 249, 250 (Wis. 1995) (per curiam) (citing State v. Dowe, 352 N.W.2d 660, 662 (Wis. 1984) (per curiam)) (emphasis (131) 321 N.W.2d 145 (Wis. 1982......