State v. Elam, No. 94-1050-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPER CURIAM; 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; WILCOX
Citation195 Wis.2d 683,538 N.W.2d 249
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. John Fitzgerald ELAM, Defendant-Appellant.
Docket NumberNo. 94-1050-CR
Decision Date04 October 1995

Page 249

538 N.W.2d 249
195 Wis.2d 683
STATE of Wisconsin, Plaintiff-Respondent,
v.
John Fitzgerald ELAM, Defendant-Appellant.
No. 94-1050-CR.
Supreme Court of Wisconsin.
Argued Sept. 7, 1995.
Decided Oct. 4, 1995.

[195 Wis.2d 684] 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.

PER CURIAM.

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 [195 Wis.2d 685] 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.

Page 250

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) (a concurrence with four...

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35 practice notes
  • Vivid, Inc. v. Fiedler, No. 96-1900
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 1998
    ...becomes 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); ......
  • New Richmond News v. City of New Richmond, No. 2014AP1938.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 18, 2015
    ...191 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 ha......
  • Tetra Tech EC, Inc. v. Wis. Dep't of Revenue, No. 2015AP2019
    • United States
    • United States State Supreme Court of Wisconsin
    • June 26, 2018
    ...term "processing" 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 c......
  • State v. Lechner, No. 96-2830-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • April 30, 1998
    ...sentencing 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. 17 [217 Wis.2d 426 ¶56 Although the inaccuracy in the presentence report resu......
  • Request a trial to view additional results
35 cases
  • Vivid, Inc. v. Fiedler, No. 96-1900
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 1998
    ...becomes 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); ......
  • New Richmond News v. City of New Richmond, No. 2014AP1938.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 18, 2015
    ...191 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 ha......
  • Tetra Tech EC, Inc. v. Wis. Dep't of Revenue, No. 2015AP2019
    • United States
    • United States State Supreme Court of Wisconsin
    • June 26, 2018
    ...term "processing" 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 c......
  • State v. Lechner, No. 96-2830-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • April 30, 1998
    ...sentencing 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. 17 [217 Wis.2d 426 ¶56 Although the inaccuracy in the presentence report resu......
  • Request a trial to view additional results

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