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Robert R. Henak

Robert Henak’s Answers

2 total

  • Evidentry hearing in Wisconsin

    At an evidentry hearing for an appeal in Wisconsin does the judge make a decision that day? If not how long does the judge have to make a decision?

    Robert’s Answer

    There is no requirement that the judge rule that day. The question usually comes down to whether the judge wants briefing on the issues raised and how the evidence presented applies to the legal standards.

    As for timing, it again depends. On a direct appeal, the court technically has 60 days in which to hear and decide a post-conviction motion from the date it was filed. However, that deadline can be extended by the Court of Appeals and routinely is if the post-conviction court needs more time.

    On a post-conviction motion filed after the direct appeal, usually under Wis. Stat. s.974.06, there is no statutory deadline for decision. However, I understand that there may be court administrative operating provisions that encourage the court to act on the motion promptly.

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  • If i get my case overturned due to the appeals court granting my motion to supress, am I entiled to compensation.

    Am I entittled to compensation, even though i plead guilty?

    Robert’s Answer

    Like many legal questions, the answer is that it depends. Since you are in Wisconsin, I assume that your conviction also was in Wisconsin and therefore controlled by Wisconsin law.

    Under the Wisconsin statutes, section 775.05, "The claims board shall hear petitions for the relief of innocent persons who have been convicted of a crime." That provision further states that,
    "If the claims board finds that the petitioner was innocent and that he or she did not by his or her act or failure to act contribute to bring about the conviction and imprisonment for which he or she seeks compensation, the claims board shall find the amount which will equitably compensate the petitioner, not to exceed $25,000 and at a rate of compensation not greater than $5,000 per year for the imprisonment."

    The question then is whether you can prove by clear and convincing evidence, not merely that your conviction was reversed, but that you were "innocent." The burden is on you and is a difficult one.

    Suppression of evidence and dismissal of charges is not the same as a finding that you are innocent. It may merely mean that the state cannot meet its burden of proving that you are guilty. If the suppression merely results in the exclusion of evidence that otherwise could prove your guilt, you will have a difficult time proving that you are "innocent" of the crime. Thus, if you were convicted of possessing something illegal, such as drugs, suppression of the evidence does not make you innocent; it merely means that the state cannot prove your guilt.

    Whether or not you can establish your innocence accordingly will depend on the specific facts of your case.

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