CITY OF MADISON v. VERNON, 99-2693 (Wis.Ct.App. 4-27-2000)

Court of Appeals of Wisconsin.
Case No. 99-2693.
Opinion Released: April 27, 2000. Opinion Filed: April 27, 2000. The decision filed March 16, 2000 is confirmed.

RECONSIDERATION of the decision filed March 16, 2000.

¶ 1. DYKMAN, P.J.

Cynthia J. Vernon has petitioned for review and, under Wis. Stat. Rule 809.24 (1997-98), we may reconsider our opinion. On reconsideration, we confirm our decision affirming the circuit court order.

¶ 2. On remand, the municipal court asked the parties to address factual arguments on the operating a motor vehicle while under the influence of an intoxicant (OMVWI) charge, and the City wrote a letter arguing that there was sufficient evidence to convict Vernon of OMVWI. Vernon wrote to the municipal court, contending that the argument on the sufficiency of the evidence was premature because the court had not held a new trial. In a later letter, Vernon asserted that the City had failed to meet its burden of proof because the only evidence of intoxication was that Vernon was friendly to the officers.

¶ 3. In its decision, the municipal court did not address Vernon’s operating with a prohibited blood alcohol concentration charge (PAC), concluding that the circuit court retained jurisdiction over that case. The municipal court concluded: “Therefore, this court must reconsider [its] previous finding of guilty on the [OMVWI] charge without resort to the PAC test results.” The court did so and found Vernon guilty.

¶ 4. In Vernon’s previous appeal to this court, one of Vernon’s two contentions was that “the evidence that was properly admitted at municipal trial was insufficient to find the defendant guilty of operating a motor vehicle while intoxicated.” We did not address that issue because we concluded that the circuit court was without jurisdiction to enter its order affirming Vernon’s conviction of OMVWI. Vernon now argues that the City has waived its claim that the remaining evidence was sufficient to sustain a conviction. She bases her claim of waiver on the City’s failure to appeal the circuit court’s initial ruling which led to Vernon’s first appeal and read: “ACCORDINGLY, the court rules that reversal of the defendant’s conviction is granted and a new trial is warranted.” Since Vernon had been convicted of two offenses, this mandate left open the question: “Conviction of what?” We concluded in our first opinion that the trial court lacked jurisdiction to answer that question.

¶ 5. We question whether the City’s failure to appeal this order is a waiver of any issue that arises on a subsequent judgment of the municipal court. Vernon has not supplied us with authority that waiver applies in this situation. We explained in State v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d 370 (Ct.App. 1980), that we would not consider argument without legal authority specifically supporting a relevant proposition. We see no reason to depart from Shaffer
now, and do not consider Vernon’s waiver argument. In any event, waiver is a matter of discretion, see Madison Newspapers, Inc. v. Pinkerton’s Inc., 200 Wis.2d 468, 478 n. 4, 545 N.W.2d 843 (Ct.App. 1996), and we conclude that it would be inappropriate to invoke waiver when the alleged waiver predated a full argument in the municipal court and the opportunity for an argument in the circuit court on the issue allegedly waived.

¶ 6. We note that the second time the circuit court heard this matter it asked the parties to brief the issues they felt were before it. The City sent a letter brief explaining that it believed the evidence was sufficient to convict Vernon of OMVWI. The record contains no evidence of a response from Vernon. Though Vernon argued in her previous appeal that the evidence was insufficient to sustain her conviction, she has abandoned that argument on this appeal, instead relying on her argument that the circuit court’s directions on remand entitled her to a new trial in the municipal court.

¶ 7. The status is therefore this: The municipal court on remand found that the evidence heard at the first trial was sufficient to convict Vernon of OMVWI. The circuit court affirmed that decision with no argument from Vernon. Vernon has not argued on appeal that the evidence was insufficient to convict her of OMVWI, and we conclude that she has conceded that the evidence is sufficient to convict her of that offense. Still, if Vernon is correct that the municipal court was required to hold a new trial, we would be obliged to reverse and order one.

¶ 8. We need not determine whether the municipal court erred. Even if it did, if ever there were a case of harmless error, this is it. Vernon has had a trial concerning the City’s allegation that she is guilty of OMVWI. Other than the claim that the municipal court did not follow instructions, she does not now complain of municipal court errors that would require a new trial on that charge. She made no complaint of record to the circuit court. She bases her argument here on a previous mandate of this court and the circuit court. If the municipal court did not follow the mandate of this court or the circuit court, its failure to do so harmed no-one’s substantial rights, and under the facts of this case, is by no means an affront to this court. We therefore affirm in its totality our opinion dated March 16, 2000.