Author:  Attorney Catherine White
Phone: 608-257-0945
Email: cwhite@hurleyburish.com

Let’s say Tom is convicted of a criminal offense and sentenced in Wisconsin. Tom decides to appeal. His lawyer files a notice of intent to pursue post-conviction relief, followed by a notice of appeal, in the circuit court. All of the transcripts are prepared and filed. The clerk transmits the record to the court of appeals. Tom’s lawyer starts drafting an opening brief to file with the court of appeals. Usually, all of the activity in the case is happening at the court of appeals at that point. But what happens if the prosecutor asks the circuit court (that is, the county judge who oversaw the case and sentenced the defendant) to do something like increase the amount of restitution that Tom is ordered to pay as part of his sentence? The law limits the circuit court’s ability to do so while the case is on appeal.

Under Wis. Stat. § 808.075(2), the circuit court retains the power to act on all issues until the notice of appeal is filed with the clerk of circuit court, at which point the circuit court may only perform certain actions listed in § 808.075(1) and (4). If the action that the prosecutor or criminal defendant wants the circuit court to take is not listed in one of those two subsections, the circuit court cannot take that action unless and until the court of appeal remits the case back to the circuit court. Some of the actions that the circuit court retains the power to perform pending appeal may benefit the criminal defendant: the circuit court can release the defendant on bond pending appeal, grant sentence credit, modify a sentence, hear a motion for new trial, and issue an order allowing depositions to be taken for use in the event of further proceedings, among other things. Of course, this doesn’t mean that a particular circuit court will take those actions, just that it has the power to take those actions if and when it deems appropriate. If a criminal defendant wants the circuit court to do something that the law doesn’t allow it to do pending appeal, § 808.075(5) can be used to petition the court of appeals for remand to the circuit court for action upon specific issues.

Others actions that the circuit court retains the power to perform pending appeal don’t benefit the criminal defendant: for example, it can impose a sentence after revocation of probation and revoke bond pending appeal. Whenever a prosecutor asks the circuit court to act after a notice of appeal has been filed, it’s important to double-check whether the law allows the circuit court to perform that action and inform the court if it lacks the authority to do what the prosecutor is asking it to do.