State v. John Fitzgerald Elam
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NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 94-1050-CR STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin FILED Plaintiff-Respondent, OCT 4, 1995 v. John Fitzgerald Elam Marilyn L. Graves Clerk of Supreme Court Defendant-Appellant. Madison, WI APPEAL from a judgment and order of the circuit court for Milwaukee County, Jeffrey A. Wagner, Judge. PER CURIAM. Affirmed. The court is equally divided on whether to affirm or reverse the judgment of the circuit court for Milwaukee County, Jeffrey A. Wagner, Judge. Chief Justice Roland B. Day, Justice Donald W. Steinmetz and Justice Janine P. Geske would affirm. Justice Shirley S. Abrahamson, Justice Bablitch and Justice Ann Walsh Bradley would reverse. William A. Justice Jon P. Wilcox did not participate. This court accepted petition to bypass. jurisdiction over this appeal on Wis. Stat. § (Rule) 809.60 (1993-94). a We have previously stated that when a tie vote occurs in this court on a bypass or certification, "justice is better served in such an No. 94-1050-CR instance by remanding consideration." to the court of appeals for State v. Richard Knutson, Inc., 191 Wis. 2d their 395, 396-397, 528 N.W.2d 430, (1995). We do not remand this appeal to the court of appeals because the court of appeals has already decided the issue presented in this appeal, prohibits a namely whether defendant from Wis. basing Stat. an § appeal 973.012 on a (1993-94) sentencing court's failure to take sentencing guidelines into consideration. In State v. Halbert, 147 Wis. 2d 123, 131-32, 432 N.W.2d 633 (Ct. App. 1988), the court of appeals held that a sentencing court's failure to consider the sentencing guidelines is not subject to appellate review. When this very issue came to this court in State v. Speer, 176 Wis. 2d 1101, 501 N.W.2d 429 (1993), three justices, Chief Justice Nathan S. Heffernan and Justices Shirley S. Abrahamson and William A. Bablitch, opined that Halbert should be overruled, while three justices, Justices Roland B. Day, Donald W. Steinmetz and Louis J. Ceci, concluded that Halbert is good law. A general principle of appellate practice is that a majority of the participating judges must have agreed on a particular point for it to be considered the opinion of the court. State v. Dowe, 120 Wis. 2d 192, 194-95, 352 N.W.2d 660 (1984) (Per Curiam) (a concurrence with four votes on an issue represents the majority and controls on the issue). Accordingly, the court concludes that Halbert was not overruled by Speer; Halbert is precedential. 2 No. 94-1050-CR The court of appeals has referred to the sentencing guideline portion of the Speer decision a number of times. In no case has the court of appeals stated that Speer overruled Halbert. In State v. Miller, 180 Wis. 2d 320, 325, 509 N.W.2d 98 (Ct. App. 1993), the court of appeals cited the Speer case for the rule that "[w]hile the sentencing guidelines may have indicated that probation with or without jail time was the presumptive sentence for Miller, sentence as the long trial as court the is court not required considers the to impose guidelines that and explains its reasons for deviating from them." In State v. Smet, 186 Wis. 2d 24, 30-31 n.2, 519 N.W.2d 697 (Ct. App. 1994), the court of appeals did not consider whether Speer is binding precedent because the record indicated that the circuit court considered the guidelines in that case. In State v. Fenderson, No. 94-0044-CR (Wis. Ct. App. June 5, 1995), the court of appeals held that Halbert "remains the controlling law" that "a sentencing court's failure to sentence within the sentencing guidelines is not a matter for court of appeals jurisdiction." Id. at 1. For the reasons set forth, the judgment and order of the circuit court are affirmed. Justice Jon P. Wilcox did not participate. 3 No. 94-1050-CR SUPREME COURT OF WISCONSIN 94-1050-CR Case No.: Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. John Fitzgerald Elam, Defendant-Appellant. ______________________________________ ON BYPASS FROM THE COURT OF APPEALS Opinion Filed: October Submitted on Briefs: Oral Argument: September 7, 4, 1995 1995 Source of APPEAL COURT: Circuit COUNTY: Milwaukee JUDGE: JEFFREY A. WAGNER JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: oral argument defender. WILCOX, J., did not participate For the defendant-appellant there were briefs and by Richard D. Martin, assistant state public For the plaintiff-respondent the cause was argued by Paul Lundsten, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
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