State v. Jenich

• Decision Date: 19 May 1980
• Docket Number: No. 79-272-CR,79-272-CR
• Citation: 292 N.W.2d 348,94 Wis.2d 74
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. George JENICH, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 348

292 N.W.2d 348

94 Wis.2d 74

STATE of Wisconsin, Plaintiff-Respondent, v. George JENICH, Defendant-Appellant-Petitioner.

No. 79-272-CR.

Supreme Court of Wisconsin.

Argued Dec. 5, 1979.

Decided Feb. 7, 1980.

Motion for Reconsideration Granted April 8, 1980.

Memorandum on Motion for Reconsideration May 19, 1980.

Daniel R. Heiden, Milwaukee, argued, for defendant-appellant-petitioner; Robert G. LeBell and Carter, Finn & LeBell, S. C., Milwaukee, on brief.

Sally L. Wellman, Asst. Atty. Gen., argued for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

ON MOTION FOR RECONSIDERATION

PER CURIAM.

Upon reconsideration, we modify that portion of our initial opinion which held that a pretrial order denying a motion to dismiss, because of a claim that to go to trial would violate double jeopardy, was a final order appealable by right under sec. 808.03(1), Stats. We conclude that the order does not satisfy the statutory test for finality under sec. 808.03(1) but is, instead, a nonfinal order appealable only by permission of the court of appeals under sec. 808.03(2).

The decision of whether to grant permissive appeals under sec. 808.03, Stats., rests within the sound discretion of the court of appeals. ¹ Nevertheless, we urge the court of appeals to be careful in exercising that discretion when the order sought to be appealed is one which denies a motion to dismiss for double jeopardy. Given the serious constitutional questions raised by claims of double jeopardy, review of such orders will often be necessary to protect the accused from "substantial or irreparable injury" one of the three criteria for testing the appropriateness of review under sec. 808.03(2).

As we pointed out in our initial opinion, determining the appealability of orders poses a question of statutory interpretation. Section 808.03, Stats., effective August 1, 1978, sets forth the following rules for appeals to the court of appeals:

"808.03 Appeals to the court of appeals. (1) APPEALS AS OF RIGHT. A final judgment or a final order of a circuit court or county court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment or order entered in accordance with s. 806.06(1)(b) or 807.11(2) which disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding.

"(2) APPEALS BY PERMISSION. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:

"(a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;

"(b) Protect the petitioner from substantial or irreparable injury; or

"(c) Clarify an issue of general importance in the administration of justice."

The new appeals statute replaced the troublesome list of intermediate orders appealable by right under the old provision, sec. 817.33, Stats., with an easily applied dichotomy: "Orders which '(dispose) of the entire matter in litigation' are appealable by right; all others are appealable only by permission." State v. Rabe, 96 Wis.2d 48, 291 N.W.2d 809 at 813 (1980) (quoting in part, sec. 808.03(1), Stats.) Since the subject order allows the litigation to continue and thus does not dispose of the entire matter in litigation, it does not satisfy the test for finality under sec. 808.03(1). In their discussion of the new appeals procedure in Wisconsin Appellate Practice, sec. 402 (1978), Martineau and Malmgren state at two different points that "(a)n order denying a motion to dismiss is intermediate and not appealable" by right (p. 20); that such an order "is not a final order because it does not dispose of the entire matter in litigation" (p. 22).

The statutory test for appeals by right under sec. 808.03(1), Stats., is considerably more stringent than the previous practice, which, in many respects, resembled the federal appeals practice discussed in our initial opinion. Cf., 28 U.S.C. § 1291; 9 Moore, Federal Practice, paras. 110.08(1), 110.10 (2d ed. 1980). Since, sec. 808.03(2) now provides a flexible procedure for seeking review of all nonfinal judgments and orders by permissive appeal, there is no need to adopt the three-pronged "collateral order" rule which enables federal appellate courts to review various intermediate orders. Martineau and Malmgren, supra, sec. 403 at 23-4. Accordingly, any implication contained in our initial opinion that the finality of orders should be tested under the three federal criteria is expressly withdrawn.

A defendant wishing to seek permissive review under sec. 808.03(2), Stats., from an order denying a motion to dismiss on double jeopardy grounds should file a petition for leave to appeal as provided in sec. 809.50. This procedure is advantageous and expeditious, because it requires the appeal to be initiated within ten days from the entry of the order.

This case came to us on a petition to review the court of appeals' decision that the order was not a final order appealable by right under sec. 808.03(1), Stats. ² A party aggrieved by a decision of the court of appeals that an order is nonfinal may seek review in this court upon a petition to appeal. The right to seek review does not exist, however, where the court of appeals, in the exercise of its discretion, declines to entertain a permissive appeal from an order the parties concede to be nonfinal. State v. Whitty, 86 Wis.2d 380, 388, 272 N.W.2d 842 (1978); see also, our initial decision in this case, 94 Wis.2d at 77, 288 N.W.2d 114.

This court will not consider the merits of an appeal if it first determines that the court of appeals was correct in its decision that the order was not a final one appealable by right. Our determination on the merits in this case was premised on the erroneous conclusion that the order was final. Because we have resolved the double jeopardy argument against the defendant, we decline, on remand, to allow him the futile opportunity to seek leave to appeal under sec. 808.03(2), Stats.

Decision of the court of appeals is affirmed; order of the circuit court is affirmed and the cause remanded for trial.

ABRAHAMSON, Justice (concurring on motion for reconsideration).

If the court is unwilling at this time to direct the court of appeals to hear these appeals, then the majority should, I think direct its attention to Jenich's argument that he, and others similarly situated, have a federal or state constitutional right to have the merits of a double jeopardy claim adjudicated before a second trial. The majority, without explanation, chooses not to decide this question.

I agree with the majority that a pretrial order denying a motion to dismiss the criminal complaint on the ground of double jeopardy is a non-final order appealable to the court of appeals upon leave granted by the court of appeals pursuant to sec. 808.03(2), Stats. However, I believe, as I said in the original opinion, that this court should, pursuant to its superintending and administrative authority, direct the court of appeals to hear all appeals taken from orders denying motions to dismiss based on double jeopardy because every order denying a motion to dismiss based on double jeopardy falls within the criteria of sec. 808.03(2), Stats., for granting leave to appeal. I would not object to the court adopting the phraseology the state suggests in its motion for reconsideration, namely that the court hold that as a matter of law orders denying motions to dismiss on double jeopardy grounds must always be reviewed to protect the accused from substantial or irreparable injury. Requiring review by the court of appeals is consistent with the United States Supreme Court's reasoning in Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977), that "if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs."

The majority urges the court of appeals to be careful in exercising its discretion to take an appeal when a motion to dismiss for double jeopardy is involved. The majority, however, does not establish any guidelines or criteria to aid the court of appeals in exercising care and discretion in this category of appeals.

An obvious guideline is that the more meritorious the defendant's claim, i. e., the better his chance of succeeding on his claim of double jeopardy, the greater the risk of substantial and irreparable harm if the defendant...