Wis. Stat. § 752.35
Discretionary reversal
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752.35752.35 Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
752.35 AnnotationIn relying solely on affidavits of persons who could have been produced at a postconviction hearing but were not, there was an insufficient basis on which the court of appeals could have exercised its discretion. State v. McConnohie, 113 Wis. 2d 362, 334 N.W.2d 903 (1983).
752.35 AnnotationThe court of appeals erred as a matter of law in granting a new trial. Although a juror incompletely responded to material questions on voir dire, the litigant failed to demonstrate that the juror more probably than not was biased against the litigant. Discussing the criteria for discretionary reversal. State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985).
752.35 AnnotationDiscussing the court of appeals’ error-correcting function. State v. Schumacher, 144 Wis. 2d 388, 424 N.W.2d 672 (1988).
752.35 AnnotationIn reviewing a discretionary reversal by the court of appeals, the supreme court uses the abuse of discretion standard. State v. Johnson, 149 Wis. 2d 418, 439 N.W.2d 122 (1989).
752.35 AnnotationConfirmed. 153 Wis. 2d 121, 449 N.W.2d 845 (1990).
752.35 AnnotationDiscussing the court’s authority under this section. Vollmer v. Luety, 156 Wis. 2d 1, 456 N.W.2d 797 (1990).
752.35 AnnotationDiscretionary reversal is not applicable to judicial review of Labor and Industry Review Commission orders under the Worker’s Compensation Act, ch. 102. There is no power to reopen a matter that has been fully determined under the Act. Kwaterski v. LIRC, 158 Wis. 2d 112, 462 N.W.2d 534 (Ct. App. 1990).
752.35 AnnotationAn appeal of an unsuccessful collateral attack under s. 974.06 does not allow discretionary reversal of an order or judgment that was the subject of a collateral attack. State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990). But see State v. Armstrong, 2005 WI 119, 283 Wis. 2d 639, 700 N.W.2d 98, 01-2789.
752.35 AnnotationDiscussing reversal on grounds that the real controversy was not fully tried. State v. Hicks, 202 Wis. 2d 150, 549 N.W.2d 435 (1996), 94-2256. See also State v. Jeffrey A.W., 2010 WI App 29, 323 Wis. 2d 541, 780 N.W.2d 231, 09-0645.
752.35 AnnotationThis section does not apply to proceedings for judicial review under ch. 227. Habermehl Electric, Inc. v. DOT, 2003 WI App 39, 260 Wis. 2d 466, 659 N.W.2d 463, 02-1573.
752.35 AnnotationA reviewing court upholds the findings of fact by a trier of fact unless they are clearly erroneous. The determination of whether a party has met the party’s burden is a matter of fact, not law. The reason given by the court of appeals in this case for invoking the power of discretionary reversal was that the defendant had “met his burden,” which was going too far for a reviewing court on a question of fact. State v. Kucharski, 2015 WI 64, 363 Wis. 2d 658, 866 N.W.2d 697, 13-0557.
752.35 AnnotationThis section should be used only in an exceptional case, after all other claims have been weighed and determined to be unsuccessful. In exercising discretionary reversal, the court of appeals must engage in an analysis setting forth the reasons that the case may be characterized as exceptional. State v. McKellips, 2016 WI 51, 369 Wis. 2d 437, 881 N.W.2d 258, 14-0827.
752.35 AnnotationState v. Wyss: A New Appellate Standard for Granting New Trials in the Interest of Justice. Mollway. 1987 WLR 171.
752.35 AnnotationA Fearless Search for the Truth No Longer: State v. Henley and Its Destructive Impact on New Trials in the Interest of Justice. Mark. 2012 WLR 1367.
Notes of Decisions
Cited in 479
cases (126 in the last 5 years), 1978–2026 · leading case: State v. Rory A. McKellips
State v. Rory A. McKellips (2016)
“075 is unconstitutionally vague, whether the jury instruction on this charge was erroneous, and if so, whether this instruction was harmless, and whether the court of appeals erred when it exercised its discretionary authority under Wis. Stat. § 752.35 to reverse McKellips'…”
Vollmer v. Luety (1990)
“This case involves the scope of the court of appeals statutory discretionary reversal power under sec. 752.35, Stats. This court originally accepted the defendant's petition for review in this case on March 7, 1989, and remanded the case to the court of appeals with directions…”
State v. Corey R. Kucharski (2015)
“¶5 Though Kucharski raised several claims on appeal, the court of appeals' analysis focused solely on granting his motion for a new trial under Wis. Stat. § 752.35 , the discretionary reversal statute.”
State v. Avery (2013)
“Wis. Stat. § 752.35 ; 15 State v. Armstrong, 2005 WI 119, ¶ 113 , 283 Wis.”
State v. Wyss (1985)
“Having found no prejudicial error, the court of appeals nevertheless chose to exercise its discretion, pursuant to sec. 752.35, Stats., and ordered a new trial in the interest of justice.”
State v. Armstrong (2005)
“2d at 55-56 , the court of appeals concluded that it did not have statutory authority under Wis. Stat. § 752.35 (1989-90) to discretionarily *681 reverse Allen's judgment of conviction because Allen's appeal was from an order denying him relief under Wis.”
State v. Henley (2010)
“15 (1) without time limit; 2) if it is not, whether the circuit court has inherent authority to grant this relief; 3) if it does not, whether [the court of appeals] may use its power of discretionary reversal under Wis. Stat. § 752.35 to reach back to the original judgment of…”
State v. Joseph T. Langlois (2018)
“Interest of justice ¶54 Whether an error in the jury instructions entitles a defendant to a new trial in the interest of justice requires us to consider Wis. Stat. §§ 752.35 and 751.06. Under Wis.”
State v. Davis (2011)
“We possess a broad power of discretionary reversal pursuant to Wis. Stat. § 752.35 (2009-10), *695 which provides authority to achieve justice in individual cases.”
State v. Schumacher (1988)
“[9] When the court of appeals was instituted in *400 1978, a substantially similar power of discretionary reversal was extended to that court under sec. 752.35, Stats. [10] Over the course of this statute's life, this court has often been called upon to interpret the scope of…”
State v. Davidson (2000)
“03 (4) and to accomplish the ends of justice under Wis. Stat. § 752.35 . [16] ¶ 88. It is true that certain errors are so plain or fundamental that they cannot be waived.”
State v. Jimothy A. Jenkins (2014)
“trial of potentially exculpatory witnesses, namely an eyewitness other than the State's witness and witnesses with evidence that another person committed the homicide for which the defendant was convicted? ¶7 Second, did the court of appeals err in refusing to order a new trial…”
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