2010 Wisconsin Code
Chapter 808. Appeals and writs of error.
808.04 Time for appeal to the court of appeals.

808.04

808.04 Time for appeal to the court of appeals.

808.04(1)

(1) Initiating an appeal. An appeal to the court of appeals must be initiated within 45 days of entry of a final judgment or order appealed from if written notice of the entry of a final judgment or order is given within 21 days of the final judgment or order as provided in s. 806.06 (5), or within 90 days of entry if notice is not given, except as provided in this section or otherwise expressly provided by law. Time limits for seeking review of a nonfinal judgment or order are established in s. 809.50.

808.04(1m)

(1m) An appeal by a record subject under s. 19.356 shall be initiated within 20 days after the date of entry of the judgment or order appealed from.

808.04(2)

(2) An appeal under s. 227.60 or 799.445 shall be initiated within 15 days after entry of judgment or order appealed from.

808.04(3)

(3) Except as provided in subs. (4) and (7), an appeal in a proceeding under s. 971.17, a criminal case, or a case under ch. 48, 51, 55, 938, or 980 shall be initiated within the time period specified in s. 809.30 (2) or 809.32 (2), whichever is applicable.

808.04(4)

(4) Except as provided in sub. (7m), an appeal by the state in a proceeding under s. 971.17, a criminal case under s. 974.05, or a case under ch. 48, 938, or 980 shall be initiated within 45 days of entry of the judgment or order appealed from.

808.04(6)

(6) When a party to an action or special proceeding dies during the period allowed for appeal, the time to appeal is the time permitted by law or 120 days after the party's death, whichever is later. If no personal representative qualifies within 60 days after the party's death, any appellant may have a personal representative appointed under s. 856.07 (2).

808.04(7)

(7) An appeal by a party other than the state from a judgment or order granting adoption shall be initiated by filing the notice required by s. 809.30 (2) (b) within 40 days after the date of entry of the judgment or order appealed from. Notwithstanding s. 809.82 (2) (a), this time period may not be enlarged.

808.04(7m)

(7m) An appeal from a judgment or order terminating parental rights or denying termination of parental rights shall be initiated by filing the notice required by s. 809.107 (2) within 30 days after the date of entry of the judgment or order appealed from. Notwithstanding s. 809.82 (2) (a), this time period may not be enlarged unless the judgment or order was entered as a result of a petition under s. 48.415 that was filed by a representative of the public under s. 48.09.

808.04(8)

(8) If the record discloses that the judgment or order appealed from was entered after the notice of appeal or intent to appeal was filed, the notice shall be treated as filed after that entry and on the day of the entry.

808.04 - ANNOT.

History: 1977 c. 187; 1979 c. 32 s. 92 (9), (14); 1979 c. 89, 221; 1981 c. 152; 1981 c. 314 ss. 130, 146; 1983 a. 183, 219; 1983 a. 491 s. 23; 1985 a. 182 s. 57; Sup. Ct. Order, 130 Wis. 2d xi, xix (1986); Sup. Ct. Order, 136 Wis. 2d xxv (1987); 1989 a. 56 s. 259; 1989 a. 192; 1991 a. 39; Sup. Ct. Order, 168 Wis. 2d xix (1992); 1993 a. 395; 1995 a. 77, 275; 1997 a. 133; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; 2003 a. 47; 2005 a. 293, 434; 2009 a. 26.

808.04 - ANNOT.

NOTE: 2003 Wis. Act 47, which affects this section, contains extensive explanatory notes.

808.04 - ANNOT.

Cross-reference: See s. 809.50 for time to file permissive appeals.

808.04 - ANNOT.

Judicial Council Note, 1983: Sub. (2) requires expedited initiation of appeals in recall and eviction cases as well as cases in which the validity of a state law is attacked in federal district court. Sub. (3) references the appeal deadline for criminal, juvenile, mental commitment and protective placement appeals. Sub. (4) references the appeal deadline for appeals by the state in criminal and children's code cases. [Bill 151-S]

808.04 - ANNOT.

Judicial Council Note, 1986: The amendment to sub. (1) clarifies the time limit for notice of entry by cross-referencing s. 806.06 (5). [Re Order eff. 7-1-86]

808.04 - ANNOT.

Judicial Council Note, 1986: Subs. (3) and (4) are amended by removing references to a repealed statute. Sub. (7) requires a party other than the state to commence an appeal from a judgment or order terminating parental rights or granting an adoption by filing notice of intent to pursue relief in the trial court within 40 days after entry. It also prohibits enlargement of this time by the court of appeals. [Re Order eff. 7-1-87]

808.04 - ANNOT.

Judicial Council Note, 1992: Subsection (8) is analogous to Rule (4) (a) (2) of the Federal Rules of Appellate Procedure. It is intended to avoid the delay, confusion and prejudice which can result from dismissing appeals solely because they are filed before the judgment or order appealed from is entered. Appeals from judgments or orders which have not been entered are still dismissable. [Re Order effective July 1, 1992]

808.04 - ANNOT.

Judicial Council Note, 2001: The word "final" has been inserted before "judgment or order" in sub. (1). The amendment specifies that the 45- or 90-day time limit applies in appeals from final orders and the 14-day time limit in s. 809.50 applies to appeals from nonfinal orders. [Re Order No. 00-02 effective July 1, 2001]

808.04 - ANNOT.

Notice under sub. (1) may not be given before judgment is entered. Sub-Zero Freezer Co. v. Manhattan Life Insurance Co. 90 Wis. 2d 76, 279 N.W.2d 492 (Ct. App. 1979).

808.04 - ANNOT.

When a written notice of entry of judgment showed the incorrect date of entry, the time to appeal was not shortened under sub. (1). Mock v. Czemierys, 113 Wis. 2d 207, 336 N.W.2d 188 (Ct. App. 1983).

808.04 - ANNOT.

To shorten the appeal period under sub. (1), a formal, captioned, and signed notice of entry of judgment stating the date of entry must be filed and served on an opposing party within 21 days of the entry date. Soquet v. Soquet, 117 Wis. 2d 553, 345 N.W.2d 401 (1984).

808.04 - ANNOT.

The date stamped on the judgment did not control as to the date of actual filing. Matter of Estate of Ristau, 144 Wis. 2d 421, 424 N.W.2d 203 (1988).

808.04 - ANNOT.

A summary contempt proceeding is not "prosecuted by the state" and appeal is pursuant to sub. (1). Matter of Contempt in State v. Simmons, 150 Wis. 2d 178, 441 N.W.2d 308 (Ct. App. 1989).

808.04 - ANNOT.

Under sub. (1), notice of entry of judgment must be given within 21 days of the entry of the judgment, not of its signing, consistent with s. 806.06 (5). Linnmar, Inc. v. First Enterprises, 161 Wis. 2d 706, 468 N.W.2d 753 (Ct. App. 1991).

808.04 - ANNOT.

If a motion for reconsideration is filed under s. 805.17 (3), the 45-day time for appeal under sub. (1) applies beginning upon disposal of the motion. Salzman v. DNR, 168 Wis. 2d 523, 484 N.W.2d 337 (Ct. App. 1992).

808.04 - ANNOT.

Strict compliance with the procedures for providing notice of entry of judgment is required. Notice of entry of judgment is ineffective if it was mailed to an incorrect address. Nichols v. Conlin, 198 Wis. 2d 287, 542 N.W.2d 194 (Ct. App. 1995), 95-2776.

808.04 - ANNOT.

Proceedings under ch. 980 are civil and not criminal. The time limits under sub. (1), and not sub. (5), apply. State v. Brunette, 212 Wis. 2d 139, 567 N.W.2d 647 (Ct. App. 1997), 96-2351.

808.04 - ANNOT.

When a judge normally presides in one county but is assigned by substitution to a case filed in another county, the filing and entry for appeal purposes occur when the document comes into the possession of the clerk of court in the county in which the case was commenced. State v. Williams, 230 Wis. 2d 50, 601 N.W.2d 838 (Ct. App. 1999), 98-3338.

808.04 - ANNOT.

Sub. (8) is applicable to appeals under s. 66.0703 as the result of the application of s. 801.02 (2), which makes chs. 801 to 847 applicable in all special proceedings. Mayek v. Cloverleaf Lakes Sanitary District #1, 2000 WI App 182, 238 Wis. 2d 261, 617 N.W.2d 235, 99-2895.

808.04 - ANNOT.

An attorney who is sanctioned by the circuit court for misconduct in a client's case must file his or her own notice of appeal in order to challenge the sanction and may not intervene in the client's appeal if the notice of appeal deadline has been missed. Absent the attorney's filing of a notice of appeal, the court of appeals lacks jurisdiction to consider a challenge to a sanction for the attorney's misconduct. Ziebell v. Ziebell, 2003 WI App 127, 265 Wis. 2d 664, 666 N.W.2d 107, 02-2552.

808.04 - ANNOT.

A circuit court order is a final order when: 1) it disposes of the entire matter in litigation under substantive law, and 2) the circuit court considered it to be the last document it would enter in the litigation. Contardi v. American Family Insurance Co. 2004 WI App 104, 273 Wis. 2d 509, 684 N.W.2d 139, 03-2284.

808.04 - ANNOT.

When final orders were entered by the court, despite the agreement by the court to hold the orders, and notice of appeal was filed more than 90 days after entry of the orders, the court of appeals' jurisdiction was based on what actually occurred and not what was intended by the parties. There is no authority to hold an order and not enter it once signed by the judge. The court of appeals cannot pretend that the orders were not entered more than 90 days before the filing of the notice of appeal. Werner v. Hendree, 2009 WI App 103, 320 Wis. 2d 592, 770 N.W.2d 782, 08-2045.