WISCONSIN SUPREME COURT
and COURT of APPEALS
STATE OF WISCONSIN
Bypass § 809.60, § 809.61
Circuit Case No. 09 CF 48
KENNETH LEROY DRIESSEN
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.
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_____
Leroy Driessen (pro se)
Co. Rd. T
[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.