974.05 State's appeal.

(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:

(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.

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

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

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

1. Quashing an arrest warrant;

2. Suppressing evidence; or

3. Suppressing a confession or admission.

(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).

(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.

History: 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.

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

That 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).

The 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).

The 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).

The 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).

Under 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).

Sub. (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).

Sub. (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).

The 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).

This 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.

A ruling that reduced a charge form OWI 3rd offense to second offense was not appealable as a matter of right. Unlike a collateral challenge that would reduce an OWI charge from a 4th or greater offense to a 3rd 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.