State v. Armstrong

591 N.W.2d 604, 225 Wis. 2d 121, 1999 Wisc. LEXIS 33

Wisconsin Supreme Court·Decided April 20, 1999·No. 97-0925-CR, 97-0926-CR·Published·Cited by 18 cases

Opinions

PER CURIAM,

¶ 1. (on motion for reconsideration). On motion for reconsideration, defendant-appellant Tonnie D. Armstrong asks this court to reverse his conviction, contending that harmless error is inapplicable where an appeal is filed under Wis. Stat. § 971.31(10). Armstrong contends that our opinion in this case contravened prior Wisconsin precedent without addressing that precedent. At the least, Armstrong requests an opportunity for both parties to brief and argue this issue.

¶ 2. To clarify the original Armstrong opinion, we modify footnote 38 of the opinion at 223 Wis. 2d 331, 369-70, 588 N.W.2d 606 (1999) by adding the following language to the end of that note;

We recognize that some courts have interpreted this court's opinion in State v. Monahan, 76 Wis. 2d 387, 251 N.W.2d 421 (1977), to establish a [122] total rejection of the use of the harmless error rule in appeals filed under Wis. Stat. § 971.31(10). E.g., State v. Pounds, 176 Wis. 2d 315, 324-26, 500 N.W.2d 373 (Ct. App. 1993); Jones v. Wisconsin, 562 F.2d 440, 445-46 (7th Cir. 1977). We do not read Monahan so broadly. The following constitutes our entire commentary on the harmless error rule in Monahan:

The state suggests that a harmless error rule be formulated to apply where a defendant is appealing pursuant to sec. 971.31(10), Stats. It is suggested that such a rule will further the interests of judicial economy. We have considered this argument, but we do not adopt such a rule.

Monahan, 76 Wis. 2d at 401. We made this statement in response to the State's detailed proposal in Monahan that we adopt a specific procedure for courts to follow when determining whether a defendant's decision to plead guilty was affected by the denial of the suppression motion. That statement simply indicates that we had considered the State's proposed methodology but declined to adopt it. We do not read Monahan to preclude, in any way, the use of a harmless error approach in § 971.31(10) appeals and we withdraw from Pounds all language to the contrary. See Pounds, 176 Wis. 2d at 324-26. We also withdraw any language that might be construed in a contrary fashion from State v. Esser, 166 Wis. 2d 897, 480 N.W.2d 541 (Ct. App. 1992).

¶ 3. The motion for reconsideration is denied without costs.

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PER CURIAM,

¶ 2. To clarify the original Armstrong opinion, we modify footnote 38 of the opinion at 223 Wis. 2d 331, 369-70, 588 N.W.2d 606 (1999) by adding the following language to the end of that note;

We recognize that some courts have interpreted this court's opinion in State v. Monahan, 76 Wis. 2d 387, 251 N.W.2d 421 (1977), to establish a [122] total rejection of the use of the harmless error rule in appeals filed under Wis. Stat. § 971.31(10). E.g., State v. Pounds, 176 Wis. 2d 315, 324-26, 500 N.W.2d 373 (Ct. App. 1993); Jones v. Wisconsin, 562 F.2d 440, 445-46 (7th Cir. 1977). We do not read Monahan so broadly. The following constitutes our entire commentary on the harmless error rule in Monahan:

The state suggests that a harmless error rule be formulated to apply where a defendant is appealing pursuant to sec. 971.31(10), Stats. It is suggested that such a rule will further the interests of judicial economy. We have considered this argument, but we do not adopt such a rule.

Monahan, 76 Wis. 2d at 401. We made this statement in response to the State's detailed proposal in Monahan that we adopt a specific procedure for courts to follow when determining whether a defendant's decision to plead guilty was affected by the denial of the suppression motion. That statement simply indicates that we had considered the State's proposed methodology but declined to adopt it. We do not read Monahan to preclude, in any way, the use of a harmless error approach in § 971.31(10) appeals and we withdraw from Pounds all language to the contrary. See Pounds, 176 Wis. 2d at 324-26. We also withdraw any language that might be construed in a contrary fashion from State v. Esser, 166 Wis. 2d 897, 480 N.W.2d 541 (Ct. App. 1992).

¶ 3. The motion for reconsideration is denied without costs.

State v. Armstrong, 591 N.W.2d 604, 225 Wis. 2d 121, 1999 Wisc. LEXIS 33 (Wis. 1999).

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