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Motion for Reconsideration  809.24(1)                               Including Motion/Petition for Bypass 809.60,

809.61     

 

Appeals Court Opinion and Order of:

 

December 3, 2009

 

Before Hoover, PJ, Peterson and Brunner, JJ

 

Kenneth L. Driessen has filed a notice of appeal from a nonfinal order and requestes a stay of enforcement of a judgement and an injunction prohibiting the trial court from imosing a sentance. An appeal of right can only be taken from a final judgement, that is, one that disposes of the entire matter in litigation.  WIS. STAT, s. 808.03(1). In a criminal case, the final judgment of comviction which is not entered until sentancing has occured.  Therfore, Driessen's appeal is premature and this court lacks jurisdiction.

 

IT IS ORDERED that the appeal is dismisses and the motion for a stay and an injuction are denied.

WISCONSIN SUPREME COURT

and COURT of APPEALS

____________________________________________________________

STATE OF WISCONSIN                                                                                                                                                                                                   

            Plaintiff-Respondent,                         

                                                                     Motion for

                                                                 Reconsideration

                                                                     809.24(1)    

V.                                                                                    Including

                                                      Motion/Petition for         

                                            Bypass 809.60, 809.61       

                                                                               2009AP2988-CR   

                                                  Circuit Case No. 09 CF 48

KENNETH LEROY DRIESSEN

           Defendant-Appellant

____________________________________________________________

 

     Appellant Kenneth Leroy Driessen, pro se, has received an opinion and order from the District III Wisconsin Court of Appeals on December 5th 2009, dated December 3rd dismissing his appeal.  In the wording of their decision it is indicated, with his notice to appeal, Driessen filed a motion requesting a stay and/or an injunction against the Circuit Court imposing a sentence seeking relief pending appeal. Whether or not Driessen's motion for stay or injunction specifically mentioned, asked permission or begged the court for relief from a non-final decision under 808.03(2)[i],  this becomes irrelevant considering the error of the District III Court stating, "this court lacks jurisdiction" in their decision.  Considering common law principles and writs, the wording of

808.03(2), and  State v. Rabe[ii], the Wisconsin Appeals Court for District III certainly had jurisdiction to decide whether or not to let Driessen's Appeal to proceed and grant the appellant's motion for a stay or injunction on it's merits. They had no right or authority to state falsely in their decision that they "lacked jurisdiction".

     The District III judges appear to be accepting the fee and denying the Appellant his right to seek permissive temporary relief at this time and move forward with his appeal as of right when the felony conviction of Friday November 13th 2009 was the final litigation as to the counts charged resulting from a March 28, 2009 incident and the Amended Criminal Complaint of June 9, 2009. An Order for Presentence Investigation Report (PSI) will not change the finality of the fact that Driessen was convicted of a felony for possession of .36ths of a gram of marijuana and three other counts on Friday the 13th. Driessen attached the PSI report to his Notice of Appeal because that is the only document the court provided him to illustrate to the Appeals Court that he has in fact been convicted and as far as the Circuit Court is concerned the conviction is finalized, see: Tyler v. The Riverbank[iii].  A PSI and sentencing hearing has no bearing on the finality of the conviction only what penalties the convicted person will face above and beyond the limitations and stigma of being a felon for the rest of his life, if not allowed relief on appeal. Appellant-Defendant Driessen does maintain that he is appealing his conviction as the result of a jury trial held on November 13, 2009 as of right under 808.03(1).  Therefore since the District III court disposed of the case by dismissal,   making no decision as to the merits of Driessen's appeal, whether by permission, certification or right, he petitions the Court for a Bypass to the Supreme Court of Wisconsin under 809.60 or 809.61

     Driessen offers the following additional grounds in support for Bypass and Motion for Stay and/or Injunction below:

1.) Driessen appealed a misdemeanor marijuana possession charge in 2007 as the result of a May 26, 2006 incident, see: State v. Driessen 2007AP1940-CR . In the appeal Driessen claimed exemption from codes concerning marijuana possession on 1st Amendment grounds among other reasons such as medicinal and popularity of the herb making criminal charges unconstitutionally vague and arbetrary. The District III Appeals Court erred at that time by citing State v. Peck[iv] as case precedence concerning compelling interest in Driessen's possession case when the peck case was a case of manufacture (growing) of large quantities, from the Peck decision "Possession is not a lesser included offense of manufacturing." Driessen was jailed and the District III Court denied his motion to proceed in In Forma Pauperis forcing him to abandon his appeal. Since case precedence is not established concerning religious use and possession of small amounts of marijuana, Driessen should be allowed to appeal to the Supreme Court in this present case and his motion for a stay be granted.

 

2.) Driessen has supplied video evidence to the court viewable at: http://wiscokidd.blip.tv/file/2832344/, and a police report written by Deputy Knapp, 08/08/2008 attached to his motion for stay/injunction. Between the video and the report it can be determined that Officer Knapp assaulted a person by grabbing his hand and camera then hitting him with his flashlight. Deputy Knapp also falsely wrote that he had instructed the person to move away at least 5 times before Deputy Knapp attacked the person standing off the road and out of the way at the scene of an accident. Assault and battery is sometimes a misdemeanor and sometimes a felony, writing a false police report is a felony. Failing to prosecute and then gagging evidence of crimes under the color of the law is also as a crime in itself.  Protecting Driessen from being arrested by a criminal should have taken place before Deputy Knapp, who knew Driessen and obviously acted vindictively toward him, should have taken place even before the incident and arrest of March 28, 2009 took place.      

 

3.)  In addition the Appeals Court District III may have previously used their office to act as a rubber stamp of Circuit Court cases regardless of facts as they relate to the State and Federal Constitutions also case precedence, let alone common sense, see: State v. Tody, 2009 WI 31,Wis. 2d, N.W.2d, 07-0400, were it took the Supreme Court to overturn a District III decision to affirm in a case where: As a matter of law, a reasonable presiding judge could not reach any other conclusion than to excuse his mother from sitting on the jury. Something else from the State v. Tody case that relates to Driessen's case is Judge Eaton is on record stating, "I like to consider myself part of law enforcement or I may be disowned".  In the Jury Trial of Driessen, when Driessen confronted Judge Eaton about this, Judge Eaton went on about defending the law enforcement notion instead of stating that the judicial branch of government is independent of law enforcement, which falls under the executive branch. Judge Eaton's authority comes from the Oath of Office[v] he took to defend the state and federal constitutions, not the police. In Driessen's opinion, Judge Eaton has stated and proven his bias making a fair hearing unlikely.

 

4.)  Driessen at one point decided that he may want to give up fighting what he figures to be a corrupt and powerful police state system, suck it in and accept probation. He knew that once on probation, beside paying fees, fines, victim assessments when he considers himself the only victim, being subject to drug tests, counseling, appointments with corrections department officials, he might try and get on with his life. He received a phone call from the Wisconsin Department of Corrections and an appointment to see a probation and parole agent was scheduled.  He later received an 18 page form from them. He did not fill the form out ahead of time because he had some questions for the agent, who told him for the first time at the meeting that he was to have the form fully completed when he arrived and he was now in non-compliance. Not only did the form ask for information of juvenile record which is a violation of ones rights of privacy, there were questions about family members that any rational person who knows the constitution would consider corruption of blood under Wisconsin Constitution Article 1, Section 12 and US Constitution Article 3, Section 3, paragraph 2. Again Driessen is faced with state agents attempting criminal unconstitutional acts against him and his family under the color of the law.  While Driessen would be glad to comply with reasonable and lawful orders to receive probation instead of imprisonment, allowing him freedom to write and file Appeal documents, he refuses to comply with unconstitutional probation requirements, a stay or injunction pending appeal is necessary for him to retain his Wisconsin Article 1, section 7 right to be heard by himself.     

 

      In conclusion Driessen begs the court to allow his appeal to proceed as of right since the felony conviction against Driessen obtained by the state after an evidentiary hearing wrought with inconsistencies through a questionable jury trial, which was the final litigation of that matter in the Circuit Court.  Driessen asks that if the validity of his reasoning concerning the finality of the conviction is questioned by the court that his appeal is allowed to proceed by permission. Driessen further begs the court for an order of stay of sentencing or an order for temporary injunctive relief from incarceration pending appeal so he can  present his appeal to the court as properly and completely as he is capable of. Furthermore he has not had a driver's license since the incident, he has not driven his truck on the road, only to gather firewood on his parents private land. He has no record of violence or thievery. Driessen has never been accused of selling or delivering marijuana.   When over 100 million Americans have taken part in the activity of smoking or eating marijuana according to US Government statistics, one can hardly consider that Driessen would be any danger to the public if he were to remain out of jail or even prison while he is appealing his case. 

 

 

 

 

 

 

 

 

_____ Dated _December 11, 2009_____

Kenneth Leroy Driessen (pro se)

12022 N. Co. Rd. T

Hayward WI 54843

715-634-2801

wiscokidd@hotmail.com     

 

 



[i] 808.03(2) Appeals by permission. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:

(a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;      

(b) Protect the petitioner from substantial or irreparable injury; or

(c) Clarify an issue of general importance in the administration of justice.

 

[ii] ANNOT.  Under s. 808.03 (2), both the prosecution and defense may seek permissive appeal of nonfinal orders. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).

 

[iii] 808.03 - ANNOT: Tyler v. The Riverbank, 2007 WI 33, 299 Wis. 2d 751, 728 N.W.2d 686, 05-2336.  A document constitutes the final document for purposes of appeal when it: 1) has been entered by the circuit court, 2) disposes of the entire matter in litigation as to one or more parties, and 3) states on the face of the document that it is the final document for purposes of appeal. When a document would otherwise constitute the final document, but for not including a finality statement, courts will construe the document liberally in favor of preserving the right to appeal.

 

[iv] 961.41 ANNOT: State v. Peck, 143 Wis. 2d 624, 422 N.W.2d 160 (Ct. App. 1988).     

   Possession is not a lesser included offense of manufacturing.

 

[v] Article IV, 28  Oath of office: Members of the legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall before they enter upon the duties of their respective offices, take and subscribe an oath or affirmation to support the constitution of the United States and the constitution of the state of Wisconsin, and faithfully to discharge the duties of their respective offices to the best of their ability. 

 

 

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