COURT OF APPEALS
DECISION
DATED AND FILED
September 23, 1999
Marilyn L. Graves
Clerk, Court of Appeals
of Wisconsin
NOTICE
This opinion is subject to
further editing. If published, the official version will appear in the bound
volume of the Official Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
State
of Wisconsin,
Plaintiff-Respondent,
v.
Evelio
Duarte-Vestar,
Defendant-Appellant.
APPEAL from an order of the circuit court for Dane County: mark a. frankel, Judge. Affirmed.
EICH, J.[1] Evelio Duarte-Vestar appeals from an order
denying his “Motion to Vacate, Set Aside[], Reverse [and] Void Sentences.” He appears to argue that: (1) he was
convicted of offenses with which he was never charged; (2) he was charged
with offenses that had previously been dismissed or of which he had been
acquitted; and (3) the trial judge should have recused himself. We reject his arguments and affirm the
order.
Duarte-Vestar was
charged in this case (trial court no. 93-CM-1307) with battery, as a
repeater. The charge stemmed from an
incident on March 8, 1993, when Duarte-Vestar struck his attorney across the
face during court proceedings. A jury
found Duarte-Vestar guilty of the charge, and he was sentenced to three years
in prison, to run consecutive to all other current sentences, including those
in case no. 92-CM-3242, in which he was charged with eleven misdemeanor counts
(all as a repeater); three counts of violation of a domestic abuse injunction,
one count of battery, one count of criminal trespass to a dwelling, and six
counts of bail jumping. Following a
jury trial, Duarte-Vestar was convicted of five of the counts and acquitted on
four, and two counts were dismissed on motions by the State. He was sentenced to a total of thirteen
years in prison on these convictions.
Duarte-Vestar argues
first that he was convicted of four offenses with which he was never
charged: aggravated battery in case no.
93-CM-1307; “domestic abuse of a restraining order and injunctions” (apparently
in case no. 93-CM-3242); aggravated battery (also apparently in case. no.
93-CM-3242); and possession of cocaine.
His argument is dispelled by a careful reading of the judgements of
conviction and criminal complaints in the two cases.
With respect to the
aggravated battery in case no. 93-CM-1307, the record reflects that
Duarte-Vestar was not convicted of aggravated battery, only simple
battery. It is true that the judgment
of conviction states as the offense: “Battery; Aggravated Battery.” This is because the statute heading for § 940.19, Stats., 1993, read as
follows: “940.19 Battery; Aggravated Battery.”
The judgment of conviction plainly stated the specific type of battery
of which Duarte-Vestar was convicted by supplying the particular statutory
subsection: § 940.19(1), Stats., which
is the “simple battery” statute.
The next three
convictions Duarte-Vestar addresses relate to case no. 92-CM-3242. With respect to the conviction for “abuse of
a restraining order and injunctions,” the criminal complaint in that case
charges Duarte-Vestar with knowingly violating a domestic abuse injunction
under § 813.12(8), Stats.,
1992, and that is the offense of which he was convicted. And, as before, the judgment of conviction
shows that Duarte-Vestar was not convicted of aggravated battery, as he
contends, but only simple battery.
Finally, with respect to his claim that he was improperly convicted of
possession of cocaine, no such conviction exists. The only reference to cocaine possession in the papers is in the
repeater allegations: he was charged as a repeater based on a prior conviction
for possession of cocaine with intent to deliver.
Duarte-Vestar’s next
argument that he was charged in the instant case, no. 93-CM-1307, with offenses
that had previously been dismissed or of which he had been acquitted in case
no. 92-CM-3242, is equally frivolous.
It is true, as we have indicated above, that several of the counts in
the other case, 92-CM-3242, were dismissed or resulted in an acquittal. However, Duarte-Vestar was never recharged
with those particular offenses, either in case no. 93-CM-1307 or any other case
to which we have been referred.
92-CM-3242 and 93-CM-1307 are separate cases involving wholly separate
incidents.
Finally, Duarte-Vestar
argues that the trial judge should have recused himself from the case because,
in Duarte-Vestar’s opinion, he was prejudiced and biased against him. Duarte-Vestar, however, fails to provide any
facts to support his position. All he
says is that “Section 757.19(2), made a mandatory Recusal of Judge [Frankel].” We have often held that we will not address
arguments that are undeveloped and not supported by the record. See Barakat v. DH&SS, 191
Wis.2d 769, 786, 530 N.W.2d 392, 398 (Ct. App. 1995). Even so, disqualification is required under § 757.19(2), Stats., only when the judge determines
“that, in fact or in appearance, he or she cannot act in an impartial
manner.…” Section 757.19(2)(g). Duarte-Vestar’s assertion that, in his view,
the judge was not impartial, in and of itself, does not require recusal. See State v. American TV &
Appliance of Madison, Inc., 151 Wis.2d 175, 183, 443 N.W.2d 662, 665
(1989).
By the Court.—Order
affirmed.
This opinion will not be published. See Rule 809.23(1)(b)(4), Stats.