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COURT OF APPEALS DECISION DATED AND RELEASED APRIL 9, 1996 |
NOTICE |
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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. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2643
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN H. SHOMO,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Langlade County:
ROBERT A. KENNEDY, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. John Shomo appeals an order denying his motion for
sentence modification.[1] The trial court denied the motion, finding
that it was "a mere rehash" of a previous postconviction motion and
further concluding that the motion was inadequate and untimely, "it
obviously being a § 974.06 motion."
Shomo argues that the trial court mischaracterized his motion as a
motion under § 974.06, Stats.,
and erred when it concluded the motion was not timely filed. We need not review all of the trial court's
reasons for denying the motion because we conclude Shomo is barred from raising
the same issues that were previously denied.
See State v. Baudhuin, 141 Wis.2d 642, 648, 416
N.W.2d 60, 62 (1987).
After Shomo's initial
postconviction motions were denied and the convictions were affirmed, Shomo
filed a pro se motion to amend his sentence.
The motion stated that it was based on a new factor, an abuse of trial
court discretion at the original sentencing and misleading or inaccurate
information presented at sentencing.
The trial court denied that motion by order entered September 30,
1994. Shomo did not appeal that
order. Rather, in June 1995, he filed a
second pro se motion to modify his sentence raising the same issues. The trial court denied that motion by an
order entered July 10, 1995, and subsequently denied reconsideration of the
July 10 order.
Shomo is barred from
raising on appeal any issue he could have raised had he appealed the September
30, 1994, order denying his motion to modify sentence. See State ex rel. LeFebre v.
Israel, 109 Wis.2d 337, 342, 325 N.W.2d 899, 901 (1982); Nichols
v. State, 73 Wis.2d 90, 91, 241 N.W.2d 877, 878 (1976). A defendant may not repeatedly file nearly
identical motions in the trial court and appeal the order of his choice based
on perceived errors committed by the trial court in denying his repetitious
motions.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.