State v. Dennis R. Thiel, 2004 WI App 140, PFR filed 7/16/04
For Thiel: Suzanne L. Hagopian
Issue/Holding:
¶27. We now turn to the second issue on appeal-that being, whether Thiel’s due process rights were violated because the circuit court failed to initiate proceedings following remand by this court and therefore nothing occurred until Thiel initiated proceedings by writing to the court nearly ten months later. The State argues that Wis. Stat. § 808.08 controls. … The State contends that subsec. (3) applies in this case.5 Subsections (1) and (2), by stating, “the judge shall” and “the trial court … shall” respectively, clearly place the duty on the trial court to initiate the action ordered on remand. Subsection (3), however, uses different language. It states, “any party may … make appropriate motion for further proceedings.” Thus, by its plain language, subsec. (3) places the onus on the parties to move the circuit court to conduct the further proceedings ordered on remand. The circuit court has no obligation to initiate proceedings or to place the case on its schedule or take any action until a party asks it to do so.¶29. Thiel also suggests that it would be unfair to place the burden on him to move the court for further proceedings under Wis. Stat. § 808.08(3) because he is an involuntary commitment patient. Thiel, however, was represented by counsel in his previous appeal. After remittitur, it was his appellate counsel’s responsibility to contact the circuit court on his behalf and request that the court conduct further proceedings consistent with our decision. We also note that, as demonstrated by his numerous letters to the circuit court that are a part of the appellate record, Thiel was perfectly capable of contacting the circuit court himself. Indeed, in one letter to the court, Thiel explicitly referred to our previous decision and asked the court to conduct the evidentiary hearing we ordered and to appoint an expert for him.
