974.02 Appeals and postconviction relief in criminal cases.

(1) A motion for postconviction relief other than under s. 974.06 or 974.07 (2) by the defendant in a criminal case shall be made in the time and manner provided in s. 809.30. An appeal by the defendant in a criminal case from a judgment of conviction or from an order denying a postconviction motion or from both shall be taken in the time and manner provided in ss. 808.04 (3) and 809.30. An appeal of an order or judgment on habeas corpus remanding to custody a prisoner committed for trial under s. 970.03 shall be taken under ss. 808.03 (2) and 809.50, with notice to the attorney general and the district attorney and opportunity for them to be heard.

(2) An appellant is not required to file a postconviction motion in the trial court prior to an appeal if the grounds are sufficiency of the evidence or issues previously raised.

History: 1971 c. 298; 1977 c. 187; 1977 c. 418 s. 929 (8m); 1979 c. 32; 1983 a. 27, 219; 2001 a. 16; 2003 a. 326.

Judicial Council Note, 1983: Sub. (1) is amended to repeal provisions relating to appeals under ch. 48, 51 or 55 cases. Those provisions have been relocated in their respective chapters for ease of reference. The subsection is also amended to clearly establish the time for bringing a postconviction motion other than under s. 974.06 and the manner for proceeding and the appeal times from a judgment of conviction, order denying a postconviction motion or both. Reference in sub. (1) to s. 809.30 is changed to s. 809.50 because the latter statute prescribes appropriate procedures for discretionary appeals while the former does not. [Bill 151-S]

Recantation by an accomplice who had testified for the state, stating that his testimony had been perjurious, did not constitute grounds for a new trial when it was uncorroborated by any other newly discovered evidence, and especially had no legal significance in light of positive identification of the defendant by the victim, as well as another eyewitness. Nicholas v. State, 49 Wis. 2d 683, 183 N.W.2d 11 (1971).

A motion for a new trial is a motion for the retrial of issues and is not an appropriate remedy for one convicted on a guilty plea. However, the motion may be considered a motion for leave to withdraw a plea of guilty and for a trial. The trial court has inherent power to hear the motion. State v. Stuart, 50 Wis. 2d 66, 183 N.W.2d 155 (1971).

Acceptance of the guilty plea could not be validated by the argument that the defendant's acts were within the proscriptions of the charged statute or that the defendant did in fact understand the charge, for the court has a duty to fulfill the Ernst requirements on the record. Such knowledge cannot be imputed to the defendant from defendant's other statements or by recourse to the preliminary transcript when the defendant never testified as to his knowledge of the charge or his understanding of the crime. McAllister v. State, 54 Wis. 2d 224, 194 N.W.2d 639 (1972).

A motion for a new trial on newly discovered evidence was properly not granted when the evidence consisted of the affidavits of 2 girls, one of which said that the crime was committed by someone else in their presence, and the other stated that both girls were frequently intoxicated and that the affiant had no recollection of the alleged facts. Swonger v. State, 54 Wis. 2d 468, 195 N.W.2d 598 (1972).

A motion for a new trial is directed to the discretion of the trial court and an order granting the motion will be affirmed unless there is an abuse of discretion. If the court has proceeded on an erroneous view of the law, that amounts to an abuse of discretion. State v. Mills, 62 Wis. 2d 186, 214 N.W.2d 456 (1974).

A claim of a constitutional right is waived unless timely raised in the trial court. Maclin v. State, 92 Wis. 2d 323, 284 N.W.2d 661 (1979).

A prerequisite to a claim on appeal of ineffective trial representation is preservation of trial counsel's testimony at a postconviction hearing in which the representation is challenged. State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

A defendant's escape during the pendency of postconviction motions constituted a forfeiture of the relief sought, and dismissal of the motion with prejudice was appropriate. State v. Braun, 185 Wis. 2d 153, 516 N.W.2d 740 (1994). But see also Braun v. Powell, 77 F. Supp. 2d 973 (1999).

When new evidence is a recantation by a witness, the recantation must be sufficiently corroborated by other newly discovered evidence. State v. Terrance J.W. 202 Wis. 2d 496, 550 N.W.2d 445 (Ct. App. 1996), 95-3511.

The requirement of corroboration of a recantation as the basis of a post-sentencing motion to withdraw a guilty plea by other newly-found evidence is met if there is a feasible motive for the initial false statement when the motive was previously unknown and there are circumstantial guarantees of the trustworthiness of the recantation. State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997), 95-1518.

If a court decision entered after the appellant's conviction constitutes a new rule of substantive law, the appellant has not waived the right to seek postconviction relief based on the newly announced rule. State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997), 95-0770.

A motion for a new trial based on new evidence that after sentencing a codefendant claimed full responsibility for a murder, recanting her trial testimony that neither codefendant was involved, required corroboration of the newly discovered evidence and a finding that there was a reasonable probability that a jury considering the original trial testimony and later statements would have a reasonable doubt about the defendants' guilt. State v. Mayo, 217 Wis. 2d 217, 579 N.W.2d 768 (Ct. App. 1998), 96-3656.

Plea withdrawal motions made prior to sentencing impose a lesser burden on the defendant than those made after. A motion based on new evidence requires showing by a preponderance of the evidence that: 1) the evidence was discovered after entry of the plea; 2) the defendant was not negligent in seeking the evidence; 3) the evidence is material to an issue in the case; and 4) the evidence is not merely cumulative. If the evidence is a witness recantation, the court must in addition determine that the recantation has reasonable indicia of reliability. State v. Kivioja, 225 Wis. 2d 271, 592 N.W.2d 220 (1999), 97-2932.

Newly discovered evidence does not include the new appreciation of the importance of evidence previously known but not used. A new expert opinion, based on facts available to the trial experts, falls within evidence that was previously known but not used. State v. Fosnow, 2001 WI App 2, 240 Wis. 2d 699, 624 N.W.2d 883, 00-0122.

A defendant must show by a preponderance of the evidence that there is a fair and just reason for allowing the withdrawal of a plea. An assertion of innocence is important but not dispositive. State v. Leitner, 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207, 00-1718.

Affirmed on other grounds. 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, 00-1718.

A challenge to the sufficiency of evidence is different from other types of challenges not previously raised during trial, which justifies allowing a challenge to the sufficiency of the evidence to be raised on appeal as a matter of right despite the fact that the challenge was not raised in the circuit court. State v. Hayes, 2004 WI 80, 273 Wis. 2d 1, 681 N.W.2d 203, 02-1542.

For a new trial based on newly discovered evidence, the defendant must prove, by clear and convincing evidence, that: 1) the evidence was discovered after conviction; 2) the defendant was not negligent in seeking evidence; 3) the evidence is material to an issue in the case; and 4) the evidence is not merely cumulative. If the defendant meets this burden, the circuit court must determine whether a reasonable probability exists that a different result would be reached in a trial. State v. Armstrong, 2005 WI 119, 283 Wis. 2d 639, 700 N.W.2d 98, 01-2789.

After determining that both parties presented credible evidence in a motion for a new trial based on newly discovered evidence, it is not the court's role to weigh the evidence. Instead, once the circuit court finds that newly discovered evidence is credible, it is required to determine whether there is a reasonable probability that a jury, hearing all evidence, would have a reasonable doubt as to the defendant's guilt. This question is not answered by a determination that the state's evidence is stronger. State v. Edmunds, 2008 WI App 33, 308 Wis. 2d 374, 746 N.W.2d 590, 07-0933.

Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and on appeal, but no right to counsel at a postconviction proceeding in the circuit court, which is often the precursor to an appeal. However, a defendant does not have the right to be represented by: 1) an attorney he or she cannot afford; 2) an attorney who is not willing to represent the defendant; 3) an attorney with a conflict of interest; or 4) an advocate who is not a member of the bar. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867.

In order to set aside a judgment of conviction based on newly discovered evidence, newly discovered evidence must be material to an issue in the case. If evidence of third-party culpability would not be admissible at trial, then it could not be material to the issue of guilt or innocence. In order to present evidence and make argument suggesting that a third party may have committed the charged crime, a defendant must show that the third party had: 1) opportunity; 2) motive; and 3) a direct connection to the crime that is not remote in time, place, or circumstances. State v. Vollbrecht, 2012 WI App 90, 344 Wis. 2d 69, 820 N.W.2d 443, 11-0425.

In order to set aside a judgment of conviction based on newly discovered evidence, the newly discovered evidence must be sufficient to establish that a defendant's conviction was a “manifest injustice." When the defendant has proven the first four criteria of the newly discovered evidence analysis (see note to Kivioja), it must then be determined whether a reasonable probability exists that had the jury heard the newly discovered evidence, it would have had a reasonable doubt as to the defendant's guilt. State v. Vollbrecht, 2012 WI App 90, 344 Wis. 2d 69, 820 N.W.2d 443, 11-0425.

Kivioja did not change the law controlling post-sentence plea-withdrawal motions. It modified the McCallum rubric only for pre-sentence motions. State v. Ferguson, 2014 WI App 48, 354 Wis. 2d 253, 847 N.W.2d 900, 13-0099.

By moving for a new trial, defendant does not waive the right to acquittal based on insufficiency of the evidence. Burks v. United States, 437 U.S. 1 (1978).

When postconviction counsel failed to assert a claim of ineffective assistance of trial counsel in a postconviction motion under s. 974.02, the defendant's opportunity to argue that claim on direct appeal was foreclosed. The appropriate forum for asserting ineffective assistance of postconviction counsel for failure to raise ineffective assistance of trial counsel was in a collateral motion under s. 974.06. Page v. Frank, 343 F.3d 901 (2003).

Failure to petition state supreme court for review precluded federal habeas corpus relief. Carter v. Gagnon, 495 F. Supp. 878 (1980).

Postconviction remedies in the 1970's. Eisenberg, 56 MLR 69.

Confusion in the court — Wisconsin's harmless error rule in criminal appeals. 63 MLR 641 (1980).

The duties of trial counsel after conviction. Eisenberg, 1975 WBB No. 2.