Wisconsin Statutes

Wis. Stat. § 974.05 (2026)

State’s appeal

✓ current as of July 2026

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974.05974.05 State’s appeal.

974.05(1)(1) Within the time period specified by s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809, an appeal may be taken by the state from any:

974.05(1)(a)(a) Final order or judgment adverse to the state, whether following a trial or a plea of guilty or no contest, if the appeal would not be prohibited by constitutional protections against double jeopardy.

974.05(1)(b)(b) Order granting postconviction relief under s. 974.02, 974.06, or 974.07.

974.05(1)(c)(c) Judgment and sentence or order of probation not authorized by law.

974.05(1)(d)(d) Order or judgment the substantive effect of which results in:

974.05(1)(d)1.1. Quashing an arrest warrant;

974.05(1)(d)2.2. Suppressing evidence; or

974.05(1)(d)3.3. Suppressing a confession or admission.

974.05(2)(2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by s. 809.10 (2) (b).

974.05(3)(3) Permission of the trial court is not required for the state to appeal, but the district attorney shall serve notice of such appeal or of the procurement of a writ of error upon the defendant or the defendant’s attorney.

974.05 HistoryHistory: 1971 c. 298; Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 187; 1983 a. 219; 1991 a. 39; 1993 a. 486; 2001 a. 16.

974.05 AnnotationIf the state appeals from an order suppressing evidence, the defendant can ask for a review of another part of the order, although the defendant could not appeal directly. State v. Beals, 52 Wis. 2d 599, 191 N.W.2d 221 (1971).

974.05 AnnotationThat the state can appeal from an order suppressing evidence, but the defendant cannot, does not show a denial of equal protection of the law. State v. Withers, 61 Wis. 2d 37, 211 N.W.2d 456 (1973).

974.05 AnnotationThe granting of a motion to withdraw a guilty plea is a final order appealable by the state. State v. Bagnall, 61 Wis. 2d 297, 212 N.W.2d 122 (1973).

974.05 AnnotationThe trial court’s setting aside of a jury finding of guilt and its dismissal of the information was not appealable by the state because it was a final judgment adverse to the state made after jeopardy had attached, and jeopardy was not waived; hence the judgment was not within those situations from which a state appeal is authorized by this section. State v. Detco, Inc., 66 Wis. 2d 95, 223 N.W.2d 859 (1974).

974.05 AnnotationThe trial court’s order specifying conditions of incarceration was neither a judgment nor a sentence under sub. (1) (c). State v. Gibbons, 71 Wis. 2d 94, 237 N.W.2d 33 (1976).

974.05 AnnotationUnder s. 808.03 (2), both the prosecution and defense may seek permissive appeals of nonfinal orders. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).

974.05 AnnotationSub. (1) (d) 2. authorizes the state to appeal an order suppressing a defendant’s oral statements. State v. Mendoza, 96 Wis. 2d 106, 291 N.W.2d 478 (1980).

974.05 AnnotationSub. (2) does not confine the right of cross-appeal to final judgments or orders. State v. Alles, 106 Wis. 2d 368, 316 N.W.2d 378 (1982).

974.05 AnnotationThe state may appeal as a matter of right any pretrial order barring admission of evidence that might “normally” determine the success of the prosecution’s case. State v. Eichman, 155 Wis. 2d 552, 456 N.W.2d 143 (1990).

974.05 AnnotationThis section does not prohibit the trial court from hearing a motion by the state to reconsider an order granting postconviction relief. A trial court has inherent power to vacate or modify an order pursuant to s. 807.03. State v. Brockett, 2002 WI App 115, 254 Wis. 2d 817, 647 N.W.2d 357, 01-1295.

974.05 AnnotationA ruling that reduced a charge from operating while intoxicated (OWI) third offense to second offense was not appealable as a matter of right. Unlike a collateral challenge that would reduce an OWI charge from a fourth or greater offense to a third or lesser offense, the reduced number of prior convictions at issue in this case would not change the applicable prohibited alcohol level. The circuit court’s ruling would not require the state to present any different evidence at trial regarding the defendant’s actual level of intoxication that would prevent the successful prosecution of the current charge. State v. Knapp, 2007 WI App 273, 306 Wis. 2d 843, 743 N.W.2d 481, 07-1582.

Notes of Decisions

Cited in 65 cases (16 in the last 5 years), 1971–2025 · leading case: State v. Eichman, 455 N.W.2d 143 (Wis. 1990).

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State v. Eichman, 455 N.W.2d 143 (Wis. 1990). · cites it 28× “We further conclude that the circuit court abused its discretion when it denied the State's second motion without a factual basis.”

State v. Rabe, 291 N.W.2d 809 (Wis. 1980). · cites it 19× “First, was the trial court's consolidation order appealable by the state either as a matter of right as a final order, pursuant to sec. 974.05, Stats., or as a permissive appeal from a non-final order under sec.”

State v. Richter, 2000 WI 58 (Wis. 2000). · cites it 16× “On May 11, 1998, the State filed an appeal pursuant to Wis. Stat. § 974.05 (1)(d)2 and 3. The court of appeals affirmed.”

State v. Stuart, 2003 WI 73 (Wis. 2003). · cites it 6× “By order dated February 16, 1999, the court of appeals summarily affirmed the circuit court's ruling, finding that the State properly filed a notice of appeal under Wis. Stat. § 974.05 (1)(d)2 (1997-98) [4] and that "an unusual circumstance" existed in the case such that the…”

State v. Jennings, 2002 WI 44 (Wis. 2002). · cites it 4× “The State appealed pursuant to Wis. Stat. § 974.05 (1)(d)2 and 3, and the court of appeals certified the case to us.”

State v. Newman, 469 N.W.2d 394 (Wis. 1991). · cites it 17× “The statute provides: Section 974.05. State's appeal. (2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by s.”

State v. Jenich, 288 N.W.2d 114 (Wis. 1980). · cites it 4× “03 but also by sec. 974.02(1), Stats., which states that an appeal taken to the court of appeals by the defendant in a criminal case must be taken in the time and manner provided in Rule 809.”

State v. Carl Lee McAdory, 2025 WI 30 (Wis. 2025). · cites it 13× “Another statute, § 974.05(1), identifies the judgments and orders that the state may appeal.”

State v. Alles, 316 N.W.2d 378 (Wis. 1982). · cites it 3× “The state requested review of the allegedly erroneous instruction pursuant to sec. 974.05(2), Stats., which provides : “(2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by s.”

State v. Hobson, 577 N.W.2d 825 (Wis. 1998). · cites it 4× “[8] The State filed its appeal pursuant to Wis. Stat. § 974.05 (1)(a). [9] Art. XIV of the Wisconsin Constitution provides: Common law continued in force.”

State v. Greve, 2004 WI 69 (Wis. 2004). · cites it 2× “*450 § 974.05 (l)(d)2 and 3 (2001-02), 1 due to an order of the Walworth County Circuit Court, Michael S.”

State v. Douglas, 365 N.W.2d 580 (Wis. 1985). · cites it 4× “" Note: Section 974.05 (1) was modified by 83 Wis.”

Show all 65 citing cases →

— Wis. Stat. § 974.05(1) — 6 cases

State v. Eichman, 455 N.W.2d 143 (Wis. 1990). “We further conclude that the circuit court abused its discretion when it denied the State's second motion without a factual basis.”

State v. Newman, 469 N.W.2d 394 (Wis. 1991). “The statute provides: Section 974.05. State's appeal. (2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by s.”

State v. Rabe, 291 N.W.2d 809 (Wis. 1980). “First, was the trial court's consolidation order appealable by the state either as a matter of right as a final order, pursuant to sec. 974.05, Stats., or as a permissive appeal from a non-final order under sec.”

State v. Douglas, 365 N.W.2d 580 (Wis. 1985). “" Note: Section 974.05 (1) was modified by 83 Wis.”

State v. Carl Lee McAdory, 2025 WI 30 (Wis. 2025). “Another statute, § 974.05(1), identifies the judgments and orders that the state may appeal.”

— Wis. Stat. § 974.05(1)(a) — 5 cases

State v. Jenich, 288 N.W.2d 114 (Wis. 1980). “03 but also by sec. 974.02(1), Stats., which states that an appeal taken to the court of appeals by the defendant in a criminal case must be taken in the time and manner provided in Rule 809.”

State v. Carl Lee McAdory, 2025 WI 30 (Wis. 2025). “Another statute, § 974.05(1), identifies the judgments and orders that the state may appeal.”

State v. Newman, 459 N.W.2d 882 (Wis. Ct. App. 1990).

State v. Lynne M. Shirikian, 2023 WI App 13 (Wis. Ct. App. 2023).

State v. Rory David Revels (Wis. Ct. App. 2022).

— Wis. Stat. § 974.05(1)(c) — 1 case

State v. Lynne M. Shirikian, 2023 WI App 13 (Wis. Ct. App. 2023).

— Wis. Stat. § 974.05(1)(d) — 19 cases

State v. Eichman, 455 N.W.2d 143 (Wis. 1990). “We further conclude that the circuit court abused its discretion when it denied the State's second motion without a factual basis.”

State v. Greve, 2004 WI 69 (Wis. 2004). “*450 § 974.05 (l)(d)2 and 3 (2001-02), 1 due to an order of the Walworth County Circuit Court, Michael S.”

State v. Stuart, 2003 WI 73 (Wis. 2003). “By order dated February 16, 1999, the court of appeals summarily affirmed the circuit court's ruling, finding that the State properly filed a notice of appeal under Wis. Stat. § 974.05 (1)(d)2 (1997-98) [4] and that "an unusual circumstance" existed in the case such that the…”

State v. Adam W. Vice, 2020 WI App 34 (Wis. Ct. App. 2020).

State v. Faust, 2003 WI App 243 (Wis. Ct. App. 2003).

— Wis. Stat. § 974.05(2) — 5 cases

State v. Alles, 316 N.W.2d 378 (Wis. 1982). “The state requested review of the allegedly erroneous instruction pursuant to sec. 974.05(2), Stats., which provides : “(2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by s.”

State v. Newman, 469 N.W.2d 394 (Wis. 1991). “The statute provides: Section 974.05. State's appeal. (2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by s.”

State v. Carl Lee McAdory, 2025 WI 30 (Wis. 2025). “Another statute, § 974.05(1), identifies the judgments and orders that the state may appeal.”

State v. Newman, 459 N.W.2d 882 (Wis. Ct. App. 1990).

State v. Thiel, 491 N.W.2d 94 (Wis. Ct. App. 1992).

— Wis. Stat. § 974.05(l)(a) — 3 cases

State v. Newman, 469 N.W.2d 394 (Wis. 1991). “The statute provides: Section 974.05. State's appeal. (2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by s.”

State v. Goyer, 456 N.W.2d 168 (Wis. Ct. App. 1990).

State v. Wilson, 2000 WI App 114 (Wis. Ct. App. 2000).

— Wis. Stat. § 974.05(l)(b) — 1 case

State v. Williams, 601 N.W.2d 838 (Wis. Ct. App. 1999).

— Wis. Stat. § 974.05(l)(d) — 10 cases

State v. Eichman, 455 N.W.2d 143 (Wis. 1990). “We further conclude that the circuit court abused its discretion when it denied the State's second motion without a factual basis.”

State v. Stuart, 2003 WI 73 (Wis. 2003). “By order dated February 16, 1999, the court of appeals summarily affirmed the circuit court's ruling, finding that the State properly filed a notice of appeal under Wis. Stat. § 974.05 (1)(d)2 (1997-98) [4] and that "an unusual circumstance" existed in the case such that the…”

State v. Grande, 485 N.W.2d 282 (Wis. Ct. App. 1992).

State v. Lynch, 2015 WI App 2 (Wis. Ct. App. 2014).

State v. Thiel, 491 N.W.2d 94 (Wis. Ct. App. 1992).

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.