COURT OF APPEALS DECISION DATED AND FILED June 3, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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 Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. James Alfred Smith, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 PER CURIAM. James Alfred Smith appeals from an order dismissing his postconviction motion for relief pursuant to Wis. Stat. § 974.06 (2005-06).[1] We conclude that the trial court lacked competency to decide the motion because the record in Smith’s underlying case was in the appeals court incident to appellate proceedings involving the same judgment Smith sought to challenge in his postconviction motion, depriving the trial court of jurisdiction.[2] Therefore, we affirm.
¶2 A jury found Smith guilty of armed robbery, contrary to Wis. Stat. § 943.32(1)(a)
(1993-94). The trial court imposed a
fifteen-year sentence. Appointed counsel
filed a direct appeal that Smith voluntarily dismissed. Smith then filed another direct appeal. We affirmed the judgment.
¶3 Smith filed a postconviction motion pursuant to Wis. Stat. § 974.06 in the trial
court on February 7, 2007. The trial
court dismissed that motion on February 12, 2007. In its postconviction order dismissing
Smith’s motion, the trial court explained that “[Smith’s] case is currently
pending in the Wisconsin Supreme Court, and the file is in
¶4 The dispositive issue is whether the record being filed in
the appeals court incident to a pending appeal deprives the trial court of
jurisdiction to decide a postconviction motion filed pursuant to Wis. Stat. § 974.06, challenging
the same judgment that is on appeal. Absent
a remand of the record, it does deprive the trial court of jurisdiction. See Wis. Stat. § 808.075(3)-(6); State
v. Neutz, 73
¶5 Smith filed his postconviction motion in the trial court on February 7, 2007. The record in this case, however, was in the appeals court incident to Smith’s petition for review until remittitur occurred, on February 20, 2007. Consequently, when Smith filed his motion on February 7, 2007, the trial court had no jurisdiction to consider that motion. See Wis. Stat. § 808.075(3).
¶6 We do not decide the substantive issues Smith raises because
the jurisdictional issue is dispositive.
See Gross v. Hoffman, 227
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] The Wisconsin Supreme Court and the Wisconsin Court of Appeals share the same clerk and clerk’s office. Consequently, we refer to the location of the record in this case generically as the appeals court because there was a petition for review pending (but never granted) in the supreme court, from a court of appeals decision reviewing the same underlying judgment that was the subject of Smith’s postconviction motion.
[3] We
presume that the trial court’s reference to “the file,” was actually to the
record, which was then in
[4] Hengel
v. Hengel, 120