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COURT OF APPEALS DECISION DATED AND FILED June 27, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Rock County: james p. daley, Judge. Affirmed.
¶1 HIGGINBOTHAM,
J.[1] Brian
Kiale Little appeals an order of the circuit court denying his motion for the
return of his handgun and ammunition. We
conclude that Little has forfeited the arguments he raises on appeal because he
did not raise them in the circuit court, and that he has abandoned the argument
he raised in the circuit court because he does not raise that issue on
appeal. Accordingly, we affirm.
BACKGROUND
¶2 The
State charged Little with carrying a concealed weapon, contrary to Wis. Stat. § 941.23. Little entered a no-contest plea to the crime
and a judgment of conviction was entered accordingly. Approximately one year later, Little filed a
motion for the return of his handgun and ammunition, pursuant to Wis. Stat. § 968.20. The court denied the motion under Wis. Stat. § 968.20(1m)(b).[2] The court explained that, under § 968.20(1m)(b),
dangerous weapons and ammunition may not be returned “to any person who
committed a crime involving the use of the dangerous weapon or the ammunition,”
and Little used a dangerous weapon and ammunition to commit the crime of
carrying a concealed weapon. Little
appeals.
DISCUSSION
¶3 Little
raises two arguments on appeal: (1) the circuit court had a duty to inform
him at the initial court appearance of the minimum mandatory penalties for the
crime of carrying a concealed weapon and the court failed to do so because the
court did not inform him that he would be required to forfeit his handgun and
ammunition under Wis. Stat. § 968.20(1m)(b);
and (2) Little’s forfeiture of his handgun and ammunition “constitutes an ex post facto punishment” because
forfeiture under § 968.20(1m)(b) “was not imposed until after Mr.
Little entered a plea and was sentenced.”
¶4 We
conclude that Little has forfeited his right to raise these arguments on
appeal. In general, courts will not
address “issues raised for the first time on appeal since the [circuit] court
has had no opportunity to pass upon them.”
Hopper v. City of Madison, 79 Wis. 2d 120, 137, 256 N.W.2d 139
(1977). Little did not raise either of
the arguments he makes on appeal in the circuit court and provides no reason
why we should address arguments not first raised in the circuit court. Because the circuit court had no opportunity
to “pass upon” either of the arguments Little raises on appeal, we decline to
address them.
¶5 The
only argument that Little did raise in the circuit court was that the
forfeiture of his handgun under Wis.
Stat. § 968.20(1m)(b) constituted an excessive fine in violation of
the Eighth Amendment to the United States Constitution. See U.S. Const. art. VIII. Little’s counsel briefly argued to the
circuit court that the forfeiture constituted an excessive fine because the
cost of the handgun “far exceeds the [$100] fine levied in this case.” The court did not directly respond to this
argument.
¶6 We
conclude that Little has abandoned his excessive fines clause argument on
appeal. See A.O. Smith Corp. v. Allstate
Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n
issue raised in the [circuit] court, but not raised on appeal, is deemed
abandoned.”) Little does not raise
the issue in his brief-in-chief, and it is well established that “a party does
not adequately raise an issue when it does not raise that issue in the
brief-in-chief.” Adler v. D&H Indus., Inc.,
2005 WI App 43, ¶18, 279 Wis. 2d 472, 694 N.W.2d 480. Moreover, to the extent that Little notes in
his reply brief that Wis. Stat. § 968.20(1m)(b)
is subject to the excessive fines clause of the Eighth Amendment, he fails to
argue that the forfeiture of his handgun is an excessive fine in violation of
the Eighth Amendment. Because Little fails
to address on appeal the only argument he raised in the circuit court, we
decline to address that argument.
CONCLUSION
¶7 For
the above reasons, we affirm the order of the circuit court.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2011-12). All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] Wisconsin Stat. § 968.20(1)-(1m)(b) provides in relevant
part:
(1) Any person claiming the right to possession of property seized …
may apply for its return to the circuit court for the county in which the
property was seized ….
(1m) ….
.…
(b) If the seized property is a dangerous weapon or ammunition, the property shall not be returned to any person who committed a crime involving the use of the dangerous weapon or the ammunition.…