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State v. Waddell6/29/2000
APPEAL from a judgment of the circuit court for Green County: JAMES R. BEER, Judge. Reversed.
Scott Waddell appeals from a judgment convicting him of third-offense drunk driving after trial to a jury. His brief, claiming that he was illegally stopped and arrested, and that, upon conviction, he was improperly ordered to pay restitution, was filed with this court on April 13, 2000. The State's brief was thus due thirty days later. Wis. Stat. Rule 809.19(3) (1997-98). On May 12, 2000, the Green County District Attorney filed a motion to enlarge the time for filing the State's brief until Monday, May 22, 2000, citing the press of other business. We granted the request, directing that the brief be filed by May 22, 2000.
. Because no brief has been filed, despite the granting of the State's request for an extension of time, we must assume that the State has elected not to respond to Waddell's appeal. We have often said that because a respondent's failure to file a brief is a tacit concession that the trial court erred and the appeal has merit, we usually will reverse the judgment in such circumstances. See State ex rel. Blackdeer v. Levis, 176 Wis. 2d 252, 260, 500 N.W.2d 339 (Ct. App. 1993). And there is nothing here to suggest that this is one of those rare cases where the issues are of such great public concern that we would elect, in the exercise of our discretion, to consider them despite the lack of briefing. See Vogt. v. Nelson, 69 Wis. 2d 125, 127, 230 N.W.2d 123 (1975).
. We therefore reverse the judgment based on the State's failure to file a brief countering Waddell's arguments.
By the Court. -- Judgment reversed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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