from a judgment and an order of the circuit court for
Washington County: 2015CF429, TODD K. MARTENS, Judge.
from a judgment and an order of the circuit court for Racine
County: 2014CF1489 EUGENE A. GASIORKIEWICZ, Judge. Dismissed.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
curiam opinions may not be cited in any court of this state
as precedent or authority, except for the limited purposes
specified in Wis.Stat. Rule 809.23(3).
These consolidated appeals require us to address our
appellate jurisdiction in the context of postconviction
criminal proceedings and a defendant's first appeal as of
right under Wis.Stat. § 974.02 (2017-18)and Wis.Stat. Rule
809.30. We hold that under established principles of
finality, when a circuit court denies a Rule 809.30
postconviction motion in part and grants the motion in part
such that further proceedings are required, an appeal cannot
be taken until those further proceedings are completed.
Because the judgments of conviction and the circuit court
orders from which these appeals are taken do not dispose of
the entire matter in litigation between the parties, we lack
jurisdiction. These appeals are dismissed.
A criminal defendant's first appeal as of right proceeds
under Wis.Stat. Rule 809.30. Wis.Stat. § 974.02(1);
State v. Evans, 2004 WI 84, ¶¶27-28, 273
Wis.2d 192, 682 N.W.2d 784, abrogated on other grounds by
State ex rel. Coleman v. McCaughtry, 2006 WI
49, 290 Wis.2d 352, 714 N.W.2d 900. Sean R. Wolfe and Donald
Ray Ward are in the same posture. Each filed a Wis.Stat. Rule
809.30 postconviction motion seeking plea withdrawal and
resentencing. In both cases, the circuit court declined to
permit plea withdrawal but granted the request for
resentencing. Each filed a notice of appeal from the judgment
of conviction and from the order denying plea
withdrawal.Resentencing has not yet occurred.
An appeal may be taken as a matter of right only from a
judgment that disposes of the entire matter in litigation as
to one or more parties. Wis.Stat. § 808.03(1). Arguably,
the entire matter in litigation between the parties has not
been disposed of because the circuit court ordered
resentencing, and Ward and Wolfe have not been resentenced.
At issue in these cases is whether an appeal as a matter of
right can be taken from the denial of part of a
postconviction motion. We required that the parties file
memoranda addressing whether a final order or judgment has
been entered such that we would have jurisdiction over the
In its memoranda, the State argues that we lack jurisdiction
because the appeals have not been brought from a final order
or judgment. The State argues that the circuit court
orders plainly anticipate further proceedings (resentencing).
Applying the principles of finality and the policy of
avoiding multiple or piecemeal appeals, the State argues that
these appeals should be dismissed.
In their memoranda, Wolfe and Ward assert that because the
postconviction motion has been decided in its entirety,
appellate review may be appropriate now. To the extent Wolfe
and Ward concede that further proceedings are anticipated
which may render the judgments of conviction and orders
nonfinal, they suggest that judicial economy may be served by
appealing the plea withdrawal issue before resentencing
because an appeal, if successful, would obviate the need for
resentencing. Additionally, Wolfe contends that he was
compelled by Wis.Stat. Rule 809.30(2)(j) to file a notice
of appeal within twenty days of entry of the order denying
his postconviction plea withdrawal and suppression
We have jurisdiction to review final orders and judgments.
Wis.Stat. § 808.03(1). The principles of finality apply
in criminal cases. See State v. Malone, 136 Wis.2d
250, 256-57, 401 N.W.2d 563 (1987) (the finality requirement
of § 808.03(1) applies to the denial of a postconviction
motion made under Wis.Stat. Rule 809.30); State v.
Rabe, 96 Wis.2d 48, 57, 291 N.W.2d 809 (1980) (the
finality of orders in criminal cases is not tested by any
less rigorous standard than that set forth in §
808.03(1)); State v. Williams, 2005 WI.App. 221,
¶15, 287 Wis.2d 748, 706 N.W.2d 355 (order granting plea
withdrawal anticipated further proceedings and was not
final). In addressing the intersection of § 808.03(1)
and Rule 809.30, the Malone court stated,
"These statutory sections, when considered in
conjunction with one another, indicate in unambiguous terms
that an appeal may be taken only from a final judgment or
… from a final order." Malone, 136
Wis.2d at 257. Thus, the requirement for finality in §
808.03(1) is not supplanted by the procedure in Rule
809.30(2)(j) directing that an appeal be taken within twenty
days of entry of an order deciding a postconviction motion.
See Rule 809.30.
Finality is not determined in terms of the issues decided.
See State v. Gene R., 196 Wis.2d 789, 792-93, 540
N.W.2d 217 (Ct. App. 1995) (bifurcated proceedings do not
render finality to the first determined issues); K.W. v.
Banas, 191 Wis.2d 354, 357, 529 N.W.2d 253 (Ct. App.
1995) (procedures for resolving coverage issues first do not
expand the statutory definition of finality to include a
circuit court determination that coverage exists under a
particular policy). The controlling principle is whether the
entire matter in litigation is disposed of as to one or more
of the parties. Wis.Stat. § 808.03(1).
In the cases before us, the same parties will continue to
litigate in the circuit court at resentencing. See Gene
R., 196 Wis.2d at 792 (consideration given to whether
the same or different parties will continue to litigate). The
Williams court addressed whether the circuit
court's order granting plea withdrawal order was final
for purposes of appeal. Williams, 287 Wis.2d 748,
¶¶9, 11. The Williams court applied the
finality requirement of Wis.Stat. § 808.03(1) and held
that the plea withdrawal order was not a final order
"because it plainly anticipates further proceedings in
the criminal case" and did not dispose of the entire
matter in litigation. Williams, 287 Wis.2d 748,
Applying the principles of finality discussed above, we hold
that because Wolfe and Ward will be resentenced as a result
of the circuit court's rulings on their postconviction
motions, the entire matter in litigation has not concluded,
and the appeals have not been taken from final orders or
judgments. Any other outcome would result in piecemeal
appeals, which are disfavored. Judicial economy is not often
served by piecemeal appeals. K.W., 191 Wis.2d at
357; Univest Corp. v. General Split ...