State v. Minued

415 N.W.2d 515, 141 Wis. 2d 325, 1987 Wisc. LEXIS 714

• Court: Wisconsin Supreme Court
• Decided: November 25, 1987
• Docket: 86-1187-CR
• Status: Published

Opinions

PER CURIAM.

We have been asked to review an unpublished decision of the court of appeals affirming the judgment of conviction of the circuit court for Racine county, Judge Emmanuel J. Vuvu-nas, wherein Robert Minued was convicted of one count of endangering safety by conduct regardless of life and one count of possession of a firearm by a felon. Because we determine that review in this case was improvidently granted, we dismiss the petition for review.

The briefs and oral argument in this case reveal that the only issue presented for review is whether the circuit court erred in refusing to give the requested self-defense instruction with regard to the defendant’s shooting at a fleeing individual. A defendant is entitled to a jury instruction on a valid theory of defense only where such an instruction is supported by the evidence. Turner v. State, 64 Wis. 2d 45, 51, 218 N.W.2d 502 (1974). Our review would thus focus on whether, under the facts of this case, the evidence was sufficient to warrant an instruction on self-defense.

Review by this court is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. Sec. (Rule) 809.62(1), Stats. Under sec. (Rule) 809.62(1), the following criteria will be considered by this court in deciding whether to review a decision of the court of appeals:

"(a) A real and significant question of federal or state constitutional law is presented.

"(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.

"(c) A decision by the supreme court will help develop, clarify or harmonize the law, and

"1. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or

"2. The question presented is a novel one, the resolution of which will have statewide impact; or

"3. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.

"(d) The court of appeals’ decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals’ decisions.

"(e) The court of appeals’ decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.”

Consistent with these principles, this court ordinarily does not review questions concerning the sufficiency of the evidence. Winkie, Inc. v. Heritage Bank, 99 Wis. 2d 616, 621-22, 299 N.W.2d 829 (1981).

Review in the present case by this court is inappropriate because it would amount to a review for correctness. It is not this court’s institutional role to perform this error correcting function. See State v. Mosley, 102 Wis. 2d 636, 665-66, 307 N.W.2d 200 (1981). The record reveals and we conclude that the issue presented in this case was adequately addressed by the court of appeals. Further, we find no other reasons under sec. (Rule) 809.62(1), Stats., for this court to exercise its discretionary power to review the decision of the court of appeals.

Because the issue presented on this review involves the sufficiency of the evidence and because the issue in this case does not meet the criteria this court has adopted for reviewing court of appeals’ decisions, we dismiss the petition for review as improvidently granted.

The review of the decision of the court of appeals is dismissed.