State v. Whitty
| Decision Date | 18 December 1978 |
| Docket Number | No. 79-197-CR,79-197-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Thomas J. WHITTY, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Robert E. Sutton, Milwaukee, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., Kirbie Knutson, Asst. Atty. Gen., and James L. Carlson, Walworth County Dist. Atty., Elkhorn, for plaintiff-respondent.
The defendant-appellant, Thomas J. Whitty, has filed a "Petition for Bail Pending Appeal" asking this court to release him on bail while his appeal is pending in District II of the Court of Appeals. Because of the importance of the procedural issues raised, we have decided to publish this opinion explaining our reasons for denying this petition.
The following chronology of significant events in this case will aid in understanding the issues presented by this petition:
March 16, --The jury returned a verdict finding the defendant guilty of
1978 sexual assault and burglary
April 19, --The defendant filed a Notice of Appeal to the Supreme Court from
1978 the ". . . judgment and whole of the verdict of the jury. . ."
May 8, 1978 --The trial court entered a judgment of conviction and sentenced
the defendant to indeterminate terms of not more than eight
years on the sexual assault charge and five years on the
burglary charge with such sentences to be served concurrently
July --Defendant filed a motion for a new trial or in the alternative
19,1978 for acquittal
August 2, --Defendant filed a motion with the trial court for release on
1978 bond pending appeal pursuant to Rule 809.31 1
August 2, --The trial court held a hearing on the defendant's post-trial
1978 motion and motion for release on bond pending appeal and from
the bench, denied both motions. An amended judgment of
conviction, dated August 3, 1978, nunc pro tunc May 8, 1978, but
file stamped August 2, 1978, was entered giving the defendant
credit for time spent in pretrial incarceration
August 14, --Defendant filed a Notice of Appeal to the Court of Appeals
1978 District II from the trial court's "decision" of August 2, 1978
denying his motion for new trial or judgment of acquittal
August 14, --Defendant filed a "Petition for Review of the Order of the Trial
1978 Court with Respect to Bail" asking the Court of Appeals pursuant
to Rule 809.31(5) to review the order of the trial court and
release the defendant on bond pending appeal
September --District II of the Court of Appeals entered an order denying the
13, 1978 defendant's petition for review stating ". . . there is no
reason to overturn the trial court's refusal to grant release
under Rule 809.31 . . ."
October 13, --Defendant filed the instant "Petition for Bail Pending Appeal"
1978 with this court, stating that ". . .pursuant to the provisions
of secs. 809.70 and 809.52. . ." he was moving this court for
and order". . . enlarging the defendant-appellant upon bail
during the pendency of his appeal in the Court of Appeals. . ."
It is clear that the defendant's reliance on Rules 809.52 and 809.70 as providing the basis for the instant petition is misplaced. Neither rule applies to a petition to this court for bail pending appeal. Rule 809.52 permits "the court" to grant temporary relief to someone who has filed a petition under Rule 809.50 or 809.51. Although the court is defined in Rule 809.01(4) as being either the Court of Appeals or Supreme Court depending on where the appeal or proceeding is pending, 2 it is clear from the context of Rule 809.52 that it applies only to the Court of Appeals. Rule 809.52 provides:
Rule 809.50 referred to above, sets forth the procedure for seeking leave to appeal a judgment or order not appealable as of right under sec. 808.03(1), Stats. This permissive appeal procedure applies to appeals from nonfinal orders or judgments in the Court of Appeals, not the Supreme Court.
Similarly, Rule 809.51 referred to above, applies in the first instance to the procedure for obtaining supervisory writs in the Court of Appeals. That same procedure is made applicable to the Supreme Court by Rule 809.71.
By the instant petition filed in this Court, the defendant has not asked the Court of Appeals for permission to appeal from a nonappealable judgment or order; nor has he sought a supervisory writ. Rather, he is asking the Supreme Court to grant his request for bail pending appeal. Clearly, Rule 809.52 does not apply to the Supreme Court in this situation.
Likewise, Rule 809.70, also cited by the defendant as a basis for the instant petition for bail pending appeal, does not apply in this case. Rule 809.70 sets forth the procedures to be followed in asking this court to take jurisdiction of an original action. Certainly, an individual's request for bail pending appeal is not a matter on which this court could appropriately exercise its original jurisdiction. See Petition of Heil, 230 Wis. 428, 284 N.W. 42 (1939). The defendant's reliance on Rule 809.70 as a basis for the instant petition is misplaced.
The procedural question posed by the instant petition is whether it should be viewed as a petition pursuant to Rule 809.62 for permission to appeal to the Supreme Court from an adverse decision of the Court of Appeals. If it is so viewed, then the question becomes whether the Court of Appeals' order of September 13, 1978, is an adverse decision within the meaning of Rule 809.62 and sec. 808.10, Stats. Underlying these questions is the issue of what is the effect of sec. 969.01(2)(d), Stats., which permits the Court of Appeals or a judge thereof or the Supreme Court or a justice thereof, to allow bail after conviction.
We conclude that the instant petition for bail pending appeal must be viewed as a petition pursuant to Rule 809.62 to appeal from an adverse decision of the Court of Appeals. Subsec. (5) of Rule 809.31, as quoted above in footnote 1, and the Judicial Council's committee notes appended to that rule indicate that whatever the disposition by the trial court of a motion for bail pending appeal, the losing side may petition for review of the trial court's order 3 in the Court of Appeals. The petition for review is filed following the procedure of Rule 809.50 for permissive appeals of orders or judgments which are not appealable as a matter of right under sec. 808.03(1), Stats. An order by a trial court denying a motion for bail is not an appealable order within the meaning of sec. 808.03(1), Stats., because it is not final. It does not determine the action. It therefore is a matter within the Court of Appeals' discretion as to whether permission should be granted to appeal from the trial court's order disposing of a motion for bail pending appeal.
Review of the Court of Appeals' decision is obtainable in this court pursuant to sec. 808.10, Stats., and Rule 809.62. The state in its memorandum of authorities filed in this court in opposition to the instant petition, states that the petition should be denied because, among other reasons, the September 13, 1978 order of the Court of Appeals which denied the defendant's petition, did not finally dispose of the appeal and is therefore not reviewable by the Supreme Court under sec. 808.10, Stats. See, In the Interest of A. R. v. Rock County Department of Social Services, 85 Wis.2d 444, 270 N.W.2d 581 (1978).
If this contention were correct, this court would never be able to review a petition for bail pending appeal. This would be in apparent conflict with sec. 969.01(2)(d), Stats., which grants this court or a justice thereof the power to admit a defendant to bail pending appeal. In order to harmonize this statutory section with the new rules of appellate procedure, a petition for review of the trial court's order granting, or as in this case, denying, the petition for bail pending appeal filed in Court of Appeals of the order disposing of the motion for bail pending appeal must be considered as a new proceeding separate from the underlying appeal. Thus, the Court of Appeals' order of September 13, 1978, is a final disposition because it terminated the proceeding wherein the defendant sought permissive review of the trial court's order denying his motion for bail pending appeal. The September 13, 1978 order can therefore be reviewed by this court in the exercise of our discretion pursuant to sec. 808.10 and Rule 809.62. This does not mean that every order of the Court of Appeals denying a permissive appeal pursuant to Rule 809.50 is a final decision of that Court from which a petition to appeal may be filed...
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