Attorney Tracey Wood challenges prior drunk driving conviction for Chicago Illinois man. Wisconsin Court of Appeals reverses.
WI Court of Appeals reverses trial court's unfair trial upon Attorney Wood appeal. State vs. Eller
Misrepresentation by Appleton attorney reversed. Otto gets probation instead of prison.
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van wagner & wood appellate attorneys
criminal convictions & sentences
The attorneys at Van Wagner & Wood represent people who have already been convicted of a criminal offense or drunk driving offense but believe their conviction was wrong, or who have been sentenced and believe their sentence was unduly harsh or faulted in some other way.
Automatic Right To Appeal
In the majority of states across the nation, a convicted person must submit a request to ask the court of appeals to hear his or her appellate case. Wisconsin law provides an automatic right to appeal for anyone who has been convicted of a state felony or misdemeanor offense. Wisconsin's "automatic right to appeal" removes the appeals application process from the appellate process. However, it does not remove the timelines.
What can be appealed?
If a state of Wisconsin court convicted you of a felony or a misdemeanor offense, you have an automatic right to appeal the conviction, the subsequent sentence, or both to the Wisconsin State Court of Appeals. If evidence was not presented to the court, or if you were misrepresented by your attorney during the trial, you can challenge the conviction or the sentence through a post conviction motion to the trial court. If your constitutional rights were violated, you have a right to a direct appeal to the Wisconsin State Court of Appeals or to the US Court of Appeals. If your sentence was unduly harsh, you can appeal. If you have already pursued an intermediate court appeal, you can appeal to the Supreme Court, and subsequently pursue post conviction remedies for a reduced sentence.
Trials Still In Process
People appealing a non-final judgment do not have a right to an automatic appeal; permissive appeals require application to the Wisconsin Court of Appeals.
Upon the conclusion of a jury trial, the jurors will have received the case for deliberations, decided the case and returned a verdict. If the jury returns a guilty verdict, the convicted person has an automatic right to appeal the conviction. An appeal to a conviction does not retry the case, the facts presented to the jury, or the jury's perspective of those facts; an appeal asks a higher court to review a lower court's decision based on law. Upon appeal, the Court of Appeals asks if there were defects in the trial. For example, the Court of Appeals may ask if the trial court's procedures were correct, if the trial court handled objections correctly, if evidence that was disputed but allowed was legal, if the law was applied correctly, or if the jury was instructed properly. The automatic right to appeal also applies to any sentence ordered by a judge post conviction (after the defendant was found guilty). Your appellate attorney may ask the Court of Appeals to review the sentence for being unduly harsh, or ask that the trial court's application of sentencing guidelines be reviewed, for example.
The difference between a jury trial and a judge trial (also called a bench trial) is the jury. A judge or bench trial is tried by the judge presiding over the case, without a jury hearing the case. There are many reasons why a person might want to take his or her case to a jury trial: a judge can easily find facts in a case, but a jury might be able to see the error in those facts, the reasons beyond the "letter of the law" being applied in the case. When a judge hears a case, certain elements such as detailed explanations of the law need not be submitted during the trial; consequently, and for many other reasons, bench trials take much less time than jury trials. Nevertheless, a person still has an automatic right to appeal a judge trial, just as they do a jury trial. The same time lines apply.
Higher Standard For Appeals
Criminal appeals are held to a higher standard than trial litigation. Appellate arguments must be intelligent, logical, and sound. The appellate court and circuit courts respect lawyers such as Attorney Van Wagner and Attorney Wood, who present very articulate appeals and motions challenging a prior conviction.
Appellate Time Lines
An automatic right to appeal does one thing: guarantees a convicted person's right to have an appeal of that conviction heard by the appellate court. However, the automatic right to appeal does not affect the strict timelines, nor the strict guidelines required by the Wisconsin Court of Appeals.
Time Restrictions - Wisconsin State Criminal Appeals
To begin the appellate process, a notice of intent to pursue post conviction or post disposition relief must be filed within days of sentencing for a lower court's conviction. The initial process begins in the lower court, asking for a review, and then proceeds to the Wisconsin Court of Appeals if that review was unsuccessful.
appeal of non final judgment or order
An exception applies to permissive appeals (those appeals made from a non final judgment or order). Unlike an appeal from a conviction, the Wisconsin Court of Appeals requires people filing a permissive appeal to request permission to appeal. The non final judgment or order must be in writing and entered and the petition must be filed with the court of appeals within days of entry of the non final judgment or order. Rule 809.50(1).
Criminal Appeals Attorneys
Any attorney can file an appeal, but not all attorneys will do so due to the strict appellate court guidelines, the rigid post conviction rules and processes, and the absolute necessity for very sound argument. As has been the experience of many convicted persons, the likelihood of a successful outcome is greatly effected by the experience of the appellate attorney. The bar is high at the appellate level, and the attorneys at Van Wagner & Wood believe they meet that bar.
Wisconsin State Criminal Appeals
For defendants convicted of a misdemeanor or felony, the initial appeal is to the intermediate appellate court, which is known as the Wisconsin Court of Appeals, or to the US Court of Appeals if the charge was brought under federal law. The courts are referred to as "intermediate" because they review cases that were previously heard by the lower trial courts, and they can be overruled by the Wisconsin Supreme Court or the US Supreme Court.
State & Federal Crimes
In most instances, crimes against state statutes fall under state jurisdiction, and are prosecuted by state courts, while crimes against federal law are prosecuted in federal courts. However, an exception exists for those crimes which are proscribed under both federal and state laws, such as manufacturing of a controlled substance, possession of a controlled substance with intent to deliver or sell, or kidnapping. If a crime is proscribed by both state and federal law, it can fall under the jurisdiction of either or both state or federal law, be charged by either or both state and federal prosecutors, and be tried in either or both state and federal courts.
Constitutionality Exception of Criminal Appeals
If the subject matter of an appeal regards the constitutionality of a law or verdict, then the appeal can be made to the US Court of Appeals or the Wisconsin State Court of Appeals.
Federal trial convictions are appealed to the US Court of Appeals.
Attorney Chris Van Wagner | Attorney Tracey Wood
Preparing For An Appeal
Perhaps the most critical preparation for an appeal occurs within the trial. If a criminal defense attorney fails to object to incorrect trial proceedings or post trial proceedings, then the defendant may be forever barred from appealing on that issue. As well, every criminal defense trial ought to be handled as though it will be appealed.
"In most instances, we handle appeals for people whose cases were handled by another firm," says Chris Van Wagner, "so it is imperative to contact us as soon as possible if the conviction or sentence needs to be appealed."
The criminal defense attorneys at Van Wagner & Wood have earned a reputation amongst lawyers across the state of Wisconsin and the nation for their skills in developing intelligent defenses for trials. Their legal strategy is focused on winning at the trial court level, but their underlying strategy is always in preparation for situations in which juries deliver the wrong verdict. By striving for the best outcome while preparing for the worst, the defendant's basis for appeal is well protected.
Van Wagner & Wood Criminal Appeals
Van Wagner & Wood's attorneys represent people on post-conviction matters including appeals of state criminal convictions and challenges to trial errors, convictions and harsh sentences throughout the state of Wisconsin, and on Federal appeals nationwide.
If you have been convicted of a crime, time is of the essence, but if you act quickly by contacting the attorneys at Van Wagner & Wood, there may be challenges to the conviction or the sentence immediately available to you.
Van Wagner & Wood - A Winning Criminal Appeals Record
In State of Wisconsin vs. Defendant Charged With 3rd OWI, a drunk driving case, a young man from Chicago, Illinois was charged and convicted of a third drunk driving offense. In the state of Wisconsin, a 3rd OWI is a misdemeanor with mandatory jail time. Attorney Tracey Wood appealed the conviction, challenged the two prior under the influence convictions, and the Court of Appeals reversed the decision. The charge was reduced from a third drunk driving offense to a first drunk driving offense. A 1st OWI is a non-criminal charge in the state of Wisconsin.
Wisconsin State Court of Appeals, State of Wisconsin v Eller, Appeal, Attorney for Defendant Appellant: Tracey Wood, 185 Wisconsin 2d 917, 520 N.W.2d 291 (Court App. 1994), Court of Appeals of Wisconsin. In State of Wisconsin vs. Eller, Attorney Tracey Wood successfully appealed an unfair trial that had violated Eller's constitutional rights and denied her motion for post conviction relief. The Wisconsin State Court of Appeals reversed the trial court's conviction and remanded the case for a new trial.
In State of Wisconsin vs. Otto, Attorney Tracey Wood convinced a circuit court judge to reconsider the three year prison and 17 year probation sentence imposed on Otto, who had pled guilty to drunk driving when represented by an attorney who had violated Supreme Court ethics rules. The circuit court judge granted her re sentencing, then gave her probation instead of prison time and ordered her immediate release from prison.
US Court of Appeals, 7th Circuit, In the matter of Phillip Balsimo & Jamie Hunter, 68 F.3d 185, United States Court of Appeals, Seventh Circuit: In the Matter of Phillip R. BALSIMO and Jamie Hunter, Petitioners. Attorney Chris Van Wagner successfully argued to the US Court of Appeals for a change of venue. The trial court was stayed (stopped pending the federal court of appeals decision). The US Court of Appeals remarked that it had not decided in favor of a change of venue previously, and granted the venue change.
United States Court of Appeals v. Perez. US Court of Appeals, 7th Circuit. Attorney Tracey Wood for the defendant appellant. 50 F3d 396. No. 94-2420. Defendant, Andres Perez ("Perez"), was indicted and, subsequently, pled guilty and was convicted of one count of conspiracy to distribute cocaine in violation of 21 U.S. C. § 846. The district court sentenced Perez to 78 months in prison. In this appeal, Perez challenges the district court's two level upward adjustment under section 3C1.1 of the United States Sentencing Commission Guidelines Manual ("Guidelines") for obstruction of justice. Perez objects to the district court's finding under section 3C1.1 that he willfully obstructed justice by fleeing the country to avoid state prosecution of a drug charge that eventually constituted an overt act under his federal drug conspiracy charge. Because we find that the district court erred in imposing the two level upward adjustment for obstruction of justice under section 3C1.1, we vacate that portion of the sentence and remand to the district court for re sentencing.
Attorney Chris Van Wagner | Attorney Tracey Wood
Wisconsin is an automatic appeal state, which means, in short, that a person convicted of a crime need not apply to appeal that conviction (or the sentence), but rather has a right to appeal the conviction (or sentence) thus removing one step (the appeal application) from the process.
If the appellate court affirms the lower court's decisions, then no change occurs to the conviction or the sentence; a defendant found guilty in a trial or sentenced to a very long prison term will not have his verdict changed to not guilty or his prison sentence reduced.
Reversed & Reversed In Part
An appellate decision that completely reverses a lower court's decision eliminates any sentence imposed by the trial court judge and completely reverses a guilty verdict to a not guilty verdict.
An appellate decision that reverses a trial court verdict in part will specify which part of the lower court's decision is reversed.
An appellate decision that remands a case back to the lower court does not necessarily reverse the lower court's verdict. The appellate decision will specify its requirements. In many instances, the appellate decision will remand a case for a new trial, and in some instances, the appellate court will provide, "remanded for a new trial consistent with this decision" to provide the guidelines under which the new trial should be held.
Free Initial Consultation
If you have been convicted of a crime or drunk driving offense and want to appeal your conviction or sentence, please call ( or ) or email the Attorneys at Van Wagner & Wood right away. An Attorney at Van Wagner & Wood will provide you with a brief but professional free "first-impression" analysis of your appeal based on the facts that you are able to convey. You can also submit your case facts to the attorneys for a return email or phone call as applicable.