Court Allows Defendant Another Chance to Challenge One-Day Sentence

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In a unanimous opinion by Chief Justice Abrahamson, the Wisconsin Supreme Court decided that a man convicted of misdemeanor theft and sentenced to one day in jail should get another chance to challenge an error of law.

When Mr. Sutton was charged with misdemeanor theft, he decided to waive his right to a jury trial and have his case tried by the judge.  However, when the judge was interviewing him to determine whether his waiver of a jury trial right was “knowing, voluntarily, and intelligent,” the judge forgot to make sure he understood he was waiving his right to a unanimous verdict.

After Sutton was convicted and sentenced to one day – time served – his attorney realized the judge’s mistake. What happened next was a convoluted flurry of motions and appeals in both the circuit court and the court of appeals as Sutton’s post-conviction counsel attempted – and failed – to use the proper channels to challenge that mistake.

Eventually, the court of appeals determined that counsel had messed it up too much, and Sutton had no more opportunities to try to correct that mistake.

The supreme court determined that the best thing to do with this procedural Gordian knot was take a sword to it. Even the State had agreed that the defendant should have a chance to raise his claim that his waiver of his jury trial right wasn’t handled properly, but the parties disagreed on how, exactly, to do that.  The court used its power to undo the lower courts’ tangled web and let Sutton file a new motion for relief in the circuit court.

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