Supreme Court Digest
This column summarizes all decisions of the
Wisconsin Supreme Court (except those involving lawyer or judicial
discipline, which are digested elsewhere in the magazine). Profs. Daniel
D. Blinka and Thomas J. Hammer invite comments and questions about the
digests. They can be reached at Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Appellate
Procedure
Petition for Review - Filing Deadline - Petition from
Incarcerated Prisoner
State ex rel. Nichols v.
Litscher, 2001 WI 119 (filed 6 Nov. 2001)
The petitioner was convicted in a Wisconsin state court of battery by a
prisoner. He was sentenced to prison and is incarcerated in a private
prison in Oklahoma. On Jan. 26, 2000, the court of appeals affirmed the
battery by a prisoner conviction. The petitioner then prepared a
petition asking the supreme court to review the decision of the court of
appeals. He delivered the petition to the mailroom at the prison where
he is incarcerated on Feb. 21, 2000. A petition for review must be filed
in the supreme court within 30 days of the date of the court of
appeals' decision, which in this case meant that the
petitioner's petition had to be filed by Feb. 25, 2000. As it turned
out, the supreme court clerk received the petition one business day
late.
The untimely petition was dismissed on that basis and the petitioner
then petitioned the supreme court for a writ of habeas corpus. Although
this petition was originally denied, the court later granted it upon
reconsideration. The question before the supreme court was whether it
may consider a pro se prisoner's petition for review when the
petition is received by the supreme court clerk more than 30 days after
the date of the court of appeals' decision from which the prisoner
seeks review.
In a unanimous decision authored by Justice Bradley, the supreme court
concluded that the 30-day deadline for receipt of a petition for review
is tolled on the date that a pro se prisoner delivers a correctly
addressed petition to the proper prison authorities for mailing. In this
case, the prisoner delivered his correctly addressed petition on the
26th day and, accordingly, the court determined that it may consider his
petition for review even though it was received in the clerk's
office more than 30 days after the date of the court of appeals'
decision.
In a footnote, the court observed that "in order to trigger
tolling, the pro se prisoner must follow prison rules or practices as to
outgoing mail whether they require placing the mail in the hands of
certain prison authorities, depositing mail in a designated receptacle,
or some other procedure" ( ¶32 note 6).
Wisconsin Lawyer
