Bottom line: If you plead guilty to some charges but enter a deferred judgment agreement on another count in the same case, you cannot appeal the convictions until that deferred count is fully resolved by dismissal or conviction.
Deferred judgment agreement blocks appeal of other convictions
A deferred judgment agreement (“DJA”) on one count in a criminal case can prevent a defendant from appealing convictions on the remaining counts. The Wisconsin Court of Appeals, District II, reached that conclusion in State v. Gustin J. King. The court applied the plain language of Wis. Stat. sec. 808.03(1) and held that a judgment of conviction is not final for appellate purposes when a deferred judgment agreement leaves a criminal count unresolved. Because one felony count remained in limbo, the court dismissed King’s appeal of his three misdemeanor convictions.
Plea deal splits charges between conviction and deferred judgment agreement
Gustin J. King faced three misdemeanor charges and one felony in Calumet County. In October 2023, King reached a plea agreement with the State. Under that agreement, King pled guilty to all three misdemeanors. He also pled guilty to the felony count, but the parties structured a deferred judgment agreement for that charge.
Under the DJA, the circuit court would not enter a judgment of conviction on the felony while the agreement remained in effect. If King successfully completed the DJA’s terms, the State would move to dismiss the felony charge with prejudice. If King violated the conditions, he would return to court for sentencing on the felony.
On November 7, 2023, the circuit court approved the DJA and sentenced King on the three misdemeanors. The resulting judgment of conviction covered only the three misdemeanor counts. It made no reference to the unresolved felony. King then filed a notice of intent to pursue postconviction relief. His appointed appellate counsel filed a no-merit notice of appeal in October 2024.
Court of Appeals questions its own jurisdiction over the appeal
The Court of Appeals raised the jurisdictional issue on its own. Under Wis. Stat. sec. 808.03(1), an appeal as of right lies only from a “final judgment” or “final order” that “disposes of the entire matter in litigation as to one or more of the parties.” Because the felony count remained suspended under the deferred judgment agreement, the court questioned whether the judgment of conviction on the misdemeanors qualified as final.
The court ordered both parties to file memoranda addressing jurisdiction. King argued the DJA effectively “disposed of” the felony count because the circuit court completed its adjudication when it approved the agreement. He relied on civil cases discussing finality. The State countered that the case was not final because the felony count would eventually result in either dismissal or sentencing, and neither had occurred yet.
Plain language of Wis. Stat. sec. 808.03(1) controls the outcome
The court sided with the State. It noted that no published Wisconsin decision had previously addressed whether a deferred judgment agreement on one count strips appellate jurisdiction over convictions on other counts in the same case. Still, the supreme court has clearly held that the finality requirement of sec. 808.03(1) applies in criminal cases. See State v. Rabe, 96 Wis. 2d 48, 57, 291 N.W.2d 809 (1980).
The court rejected King’s argument that the DJA had “disposed of” the felony. As the court put it, “disposal was precisely the thing being deferred.” Every charged criminal count must eventually conclude with either dismissal or conviction. The deferred judgment agreement postponed both outcomes and required the circuit court to perform one of them in the future. So the entire matter in litigation had not been resolved.
The court also denied King’s alternative request for leave to appeal the non-final order under Wis. Stat. sec. 808.03(2). It found the criteria for granting discretionary review were not satisfied.
Practical impact on defendants considering a deferred judgment agreement
This decision creates a concrete consequence for defendants who negotiate plea deals involving a deferred judgment agreement on some counts but not others. If you plead guilty to certain charges and defer resolution on another count, you cannot appeal any of the convictions until the deferred count reaches a final resolution. That resolution might take years, depending on the DJA’s terms.
The court acknowledged this delay and urged parties to factor it into their negotiations. A deferred judgment agreement is a voluntary arrangement. Both the defense and prosecution agree to it, and the circuit court must approve it. Defendants and their attorneys should weigh the appellate timing consequences before entering into such agreements.
Once the felony count in King’s case is resolved, whether by dismissal or sentencing, King will be able to seek postconviction review of the entire case, including the three misdemeanor convictions.
Contact Van Severen Law Office
Plea agreements and deferred judgment agreements involve strategic decisions that can affect your appellate rights for years. If you face criminal charges in Wisconsin and want to understand how a deferred judgment agreement might impact your case, the criminal defense attorneys at Van Severen Law Office, S.C. can help. Our Milwaukee-based firm handles felony and misdemeanor cases across the state, including complex plea negotiations and appellate work. Call (414) 270-0202 for a free consultation.