Friday, September 12, 2008


If you have recently been convicted of a crime and want to appeal your conviction, you must raise all significant legal issues in your first postconviction motion. If you do not, the chances are you will be procedurally barred from raising new issues in subsequent postconviction motions.

Two very important legal principles work against you here – finality and waiver. Generally speaking, “finality” means that if you raised an issue in a previous motion and lost, you cannot raise it again. See Beamon v. State, 93 Wis. 2d 215, 286 N.W.2d 592 (1980). “Waiver” means that if you failed to raise a particular issue in a previous motion, you cannot raise it later.

It is incredibly difficult to raise a new issue in a later postconviction motion. To do this, you must show the court a “sufficient reason” for raising it now. See State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994); State v. Lo, 2003 WI 707, 264 Wis.2d 1, 665 N.W.2d 756. This is not an easy task. There are very few circumstances in which a court has found “sufficient reasons.” Those include:

§ The appellate attorney did not claim ineffective assistance of trial counsel on direct appeal, because the appellate attorney was also the attorney at trial. See State v. Hensley, 221 Wis.2d 473, 585 N.W.2d 683 (Ct. App. 1998).

§ The appellate attorney was ineffective in failing to bring a postconviction motion on direct appeal. See State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 680, 556 N.W.2d 136, 139 (Ct. App. 1996).

§ The substantive law has changed, and it could not have been foreseen at the time of your direct appeal. See State v. Howard, 211 IWis. 2d, 269 564 N.W.2d 753 (1997).

The doctrine of finality and the waiver rule generally mean that you get only one chance to make your arguments. That is why it is so very important that you or your attorney raise all important issues in your initial postconviction motion.

Sydne French, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 -

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