District II
May 8, 2013
To:
Hon. Gary R.
Sharpe
Fond du Lac County Courthouse
160 South Macy Street
Fond du Lac, WI 54935
Ramona Geib
Clerk of Court
Fond du Lac County Courthouse
160 South Macy Street
Fond du Lac, WI 54935
Jeffrey J. Kassel
Assistant Attorney General
P. O. Box 7857
Madison, WI 53707-7857
Eric Toney
District Attorney
Fond du Lac County
160 South Macy Street
Fond du Lac, WI 54935
Gregory R. Schmitt 448723
Oakhill Corr. Inst.
P.O. Box 938
Oregon, WI 53575-0938
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Gregory R. Schmitt (L.C. # 2003CF262) |
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Before Brown, C.J., Reilly and Gundrum, JJ.
Gregory Schmitt appeals pro se from
a September 4, 2012 order denying his motion to reconsider a July 15, 2011 decision denying part of the sentence
credit he requested. Based upon our
review of the briefs and record, we conclude at conference that this case is
appropriate for summary disposition. Wis. Stat. Rule 809.21 (2011-12). We conclude that we lack jurisdiction over
this appeal. The appeal is dismissed.
Schmitt was convicted in 2004 of operating while intoxicated (5th
or greater). In July 2010, Schmitt moved
the circuit court for 437 days of sentence credit. After a hearing, the circuit court entered a
memorandum decision on July 15, 2011, granting seventy-five days of
sentence credit but denying 362 days of sentence credit.[1] In July 2012, Schmitt sought reconsideration
because his original motion “failed to argue caselaw to support his request and
he request time which was credited to another case, which was Dual Credit and
is not allowed.” Schmitt then restated
his arguments for sentence credit. The
circuit court denied the motion because “[n]othing herein alters the findings
and conclusions set forth in my initial decision on July 15, 2011.” The court further stated that Schmitt did not provide “additional insight or
allegations supporting the sentence request.”
Schmitt appeals.
An appeal cannot be taken from an order denying a motion for
reconsideration which presents the same issues as those determined in the order
sought to be reconsidered. See Silverton
Enters., Inc. v. General Cas. Co. of Wis., 143 Wis. 2d 661, 665,
422 N.W.2d 154 (Ct. App. 1988). The
concern is that a motion for reconsideration not be used to extend the time to
appeal from an order when that time has expired. Id.; see also Ver Hagen v. Gibbons, 55 Wis. 2d 21, 26, 197 N.W.2d 752 (1972). We
ordered the parties to address our jurisdiction as the first issue in their
appellate briefs. Schmitt argues that we
have jurisdiction; the State disagrees.
The record shows that a final order was entered on July 15, 2011,
denying in part and granting in part Schmitt’s motion for sentence credit. Schmitt did not appeal. Schmitt’s reconsideration motion presented an
issue previously determined by the July 15, 2011 order: whether Schmitt was entitled to sentence
credit for his Earned Release Program participation. Silverton and Ver Hagen apply. We lack jurisdiction to review the September
4, 2012 order denying reconsideration.[2]
Upon the foregoing reasons,
IT IS ORDERED that this appeal is dismissed for lack of jurisdiction.
Diane M. Fremgen
Clerk of Court of Appeals
[1] The July 15, 2011 circuit court decision both granted and denied sentence credit. The decision disposed of the entire matter in litigation, rendering it a final, appealable disposition. Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶39, 299 Wis. 2d 723, 728 N.W.2d 670.
[2] To
the extent we have not addressed an argument raised on appeal, the argument is
deemed rejected. State v. Waste Mgmt. of