State v. Gustin J. King

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 18, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2064-CRNM Cir. Ct. No. 2022CF277

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GUSTIN J. KING,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Calumet County:
JEFFREY S. FROEHLICH, Judge. Appeal dismissed.

Before Neubauer, P.J., Gundrum, and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP2064-CRNM

¶1 PER CURIAM. This no-merit appeal requires us to address our
appellate jurisdiction where the appellant was convicted of three crimes but a
fourth criminal count in the same case remains unresolved due to a Deferred
Judgment Agreement (“DJA”). Applying the plain language of WIS. STAT.
§ 808.03(1) (2023-24),1 we conclude that we lack jurisdiction over this premature
no-merit appeal. While the three crimes resulted in a conviction and sentencing on
those three counts, there is not yet a final judgment that disposes of the entire
matter in this litigation between the parties. Therefore, the appeal is dismissed.

¶2 King was charged with three misdemeanors and a felony. In
October 2023, King reached a plea agreement with the State that included a DJA
for the felony count. Pursuant to that agreement, King pled guilty to three
misdemeanors. King also pled guilty to the felony, but he was not sentenced on
that count, and a judgment of conviction will not be entered on the felony count
while the agreement is in effect. If King successfully completes the terms of the
DJA, the State “will move to dismiss this charge without costs and with
prejudice.” If King violates the conditions of the DJA, he “will be brought back to
court for sentencing.”

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WISCONSIN STAT. § 808.03(1) provides in relevant part:

APPEALS AS OF RIGHT. A final judgment or a final order of a
circuit court may be appealed as a matter of right to the court of
appeals unless otherwise expressly provided by law. A final
judgment or final order is a judgment, order or disposition that
disposes of the entire matter in litigation as to one or more of the
parties[.]

All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP2064-CRNM

¶3 On November 7, 2023, the circuit court entered an order approving
the DJA. On that same day, it sentenced King for the three misdemeanors. The
circuit court entered a judgment of conviction that indicates King was convicted of
three misdemeanors. The judgment of conviction does not reference the
unresolved felony count.

¶4 King filed a notice of intent to pursue postconviction relief from the
judgment of conviction. In October 2024, his appointed appellate counsel filed the
no-merit notice of appeal that led to the opening of this appeal.

¶5 This court has an independent duty to determine its jurisdiction over
each appeal. See Carla B. v. Timothy N., 228 Wis. 2d 695, 698, 598 N.W.2d 924
(Ct. App. 1999). Our review of the appellate record led us to question our
jurisdiction because one of the criminal charges in the case remains unresolved.
We entered an order directing the parties to file memoranda addressing this court’s
appellate jurisdiction. We explained:

An appeal may be taken as a matter of right only from a
judgment that disposes of the entire matter in litigation as
to one or more parties. WIS. STAT. § 808.03(1). Arguably
in this case the entire matter in litigation between the
parties has not been disposed of. The felony count remains
in suspension. That count will either be dismissed at the
conclusion of the [DJA], or it will be revived and King will
return to court for sentencing. Therefore, this court
questions whether an appeal as a matter of right can be
taken at this time as to any of the counts. See State v.
Malone, 136 Wis. 2d 250, 257-60, 401 N.W.2d 563 (1987)
(the finality requirement of § 808.03(1) applies to denial of
a postconviction motion made under WIS. STAT.
RULE 809.30); State v. Rabe, 96 Wis. 2d 48, 57, 291
N.W.2d 809 (1980) (the finality of orders in criminal cases
is not tested by any less rigorous standard than that set forth
in § 808.03(1)).

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No. 2024AP2064-CRNM

¶6 In his memorandum, King argues that this court has jurisdiction over
the appeal. He asserts:

Pursuant to [WIS. STAT. §§ and RULES] 808.03(1),
809.30, 809.32 and 974.02(1), entry of a judgment of
conviction and order imposing sentence is a final order of a
circuit court that may be appealed as a matter of right. The
trigger event specified in RULE 809.30(2)(b) is
“sentencing” and [RULES] 809.30(2)(j) and 809.32(2)
provide that appeal may be taken from entry of the
resulting “judgment of conviction.” There is no
qualification or exception. It is of no consequence that the
judgment of conviction is entered on all counts charged or
on only some. By rule, when a judgment of conviction is
entered following sentencing, that judgment is a final order
of a court for purposes of appeal.

Recognizing that the entire matter in litigation must be disposed of, King further
argues that when the circuit court accepted the DJA on one count, it “‘completed
its adjudication of the rights of the parties’ on that count, leaving ‘nothing to be
done but to enforce by execution what has been determined’” (quoting
Thomas/Van Dyken Joint Venture v. Van Dyken, 90 Wis. 2d 236, 242-43, 279
N.W.2d 459 (1979) and Anchor Savings & Loan Ass’n v. Coyle, 148 Wis. 2d 94,
100, 435 N.W.2d 727 (1989)). Accordingly, King contends, “[t]he circuit court’s
entry of a judgment of conviction on the remaining counts terminated the
proceeding in the circuit court and left no other justiciable matter pending before
that court,” so “an appeal from that judgment is available as a matter of right.”

¶7 In response, the State argues that this court lacks jurisdiction over
the appeal under WIS. STAT. § 808.03(1) because the circuit court has not entered a
judgment “that disposes of the entire matter in litigation.” See id. The State
continues:

The deferral agreement postponed the decision to dismiss
or convict King on that count for three years. While a final

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No. 2024AP2064-CRNM

order has been entered as to some counts, the matter as a
whole is not final….

To allow King to appeal only some counts could
result in two separate direct appeals of one criminal case….
This is precisely the result that WIS. STAT. § 808.03(1) is
designed to avoid.

¶8 Although both parties cite cases that discuss finality in other
contexts, it is undisputed that neither the supreme court nor this court has
previously determined, in a published decision, whether the court of appeals has
jurisdiction to review a judgment of conviction when one or more criminal counts
remain unresolved due to the existence of a DJA. However, our supreme court has
clearly held that the finality requirement of WIS. STAT. § 808.03(1) applies in
criminal cases. See Rabe, 96 Wis. 2d at 57.

¶9 Applying the plain meaning of WIS. STAT. § 808.03(1), we conclude
that the judgment of conviction entered in this case was not final for purposes of
appeal because it did not “dispose[] of the entire matter in litigation.” See
§ 808.03(1); see also State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI
58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (“[S]tatutory interpretation ‘begins
with the language of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.’”) (citation omitted). A judgment of conviction was
not entered on the felony count and sentencing on that count has not taken place,
and dismissal has also been deferred. Although King attempts to satisfy the
finality language of § 808.03(1) by describing the felony count as having been
“disposed of” by the DJA, disposal was precisely the thing being deferred. Our
current understanding is that every charged criminal count must eventually
conclude with either dismissal or a conviction. King’s DJA postponed both of
those acts, and instead required the circuit court to perform one of them in the
future.

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No. 2024AP2064-CRNM

¶10 Therefore, at this time, we lack jurisdiction to review the judgment
of conviction for the three misdemeanor counts. Once the felony count is resolved
by entry of a final order or judgment, King will be able to seek postconviction
review of the entire case.

¶11 This court acknowledges that the lack of finality created by entering
a DJA on one or more counts in a criminal case may delay appellate review of
counts for which a defendant was sentenced in the same circuit court case. This is
a factor parties may wish to consider when they negotiate the terms of a DJA,
which, we emphasize, is a voluntary agreement entered into by the parties and
approved by the circuit court.

¶12 Finally, we turn to an alternative request from King. He asks that if
we conclude that we lack jurisdiction over this no-merit appeal, we exercise our
discretion to grant leave to appeal a non-final order so that this court’s no-merit
review of the three misdemeanor convictions can proceed without delay. We are
not persuaded that the criteria for granting leave to appeal are satisfied in this case.
See WIS. STAT. § 808.03(2). Therefore, that alternative request is denied.

By the Court.—Appeal dismissed.

Recommended for publication in the official reports.

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