197 N.W.2d 1 (Wis. 1972), 219, State ex rel. Warren v. County Court of Shawano-Menominee County

Docket Nº:State 219.
Citation:197 N.W.2d 1, 54 Wis.2d 613
Opinion Judge:The opinion of the court was delivered by: Hallows
Party Name:STATE of Wisconsin ex rel. Robert W. WARREN, Attorney General, Petitioner, v. The COUNTY COURT OF SHAWANO-MENOMINEE COUNTY, Wisconsin, Branch I thereof, and Honorable M. G. Eberlein, County Judge, Respondents.
Attorney:For the petitioner the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
Case Date:May 04, 1972
Court:Supreme Court of Wisconsin

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197 N.W.2d 1 (Wis. 1972)

54 Wis.2d 613

STATE of Wisconsin ex rel. Robert W. WARREN, Attorney

General, Petitioner,



Branch I thereof, and Honorable M. G. Eberlein,

County Judge, Respondents.

No. State 219.

Supreme Court of Wisconsin.

May 4, 1972.

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[54 Wis.2d 614] On December 29, 1971, the petitioner Robert W. Warren, Attorney General, filed a petition for a writ of certiorari on the ground the Honorable M. G. Eberlein, County Judge, Branch I, Shawano-Menominee County, was without jurisdiction when on December 7th, [54 Wis.2d 615] 1970, he amended a judgment of sentencing entered on March 14, 1958, by reducing the sentence of one Robbert Peters. A hearing was had and the writ issued, requiring a return of the record. The record was returned and briefs have been filed for the petitioner by Robert W. Warren, Attorney General, and for the respondents by Douglas D. Winter, attorney and by County Judge M. G. Eberlein, pro se.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for petitioner.

Douglas Winter, Shawano, for respondents.

HALLOWS, Chief Justice.

It appears from the return that on March 14, 1958, Judge C. B. Dillett, the then county judge of Shawano county, sentenced Robert Peters for a term not exceeding ten years for forceful robbery, five years for causing great bodily harm, and thirty years for forceful rape. These sentences were the maximum for the crimes. All sentences were ordered to run consecutively which made a total period of incarceration of not more than 45 years. The record discloses other uncharged crimes allegedly committed by Robert Peters and other circumstances which at the time caused the judge to pronounce the sentences he did. Twelve years later, Robert Peters filed in the Shawano County Court a motion for a reconsideration of the sentence.

The respondent County Judge M. G. Eberlein appointed Douglas D. Winter as counsel for Robert Peters and conducted a hearing on December 7, 1970. After the hearing, the respondent Judge Eberlein modified the sentence pronounced by his predecessor in office by reducing the 30-year sentence for rape to [54 Wis.2d 616] 20 years and changing the three sentences from being consecutive to concurrent. The effect of the changes reduced the total time of imprisonment by 25 years. He also recommended to the parole board that Peters be paroled in 1971. Peters was 18 years old when he was convicted of the crimes. At the time of resentencing, he was 31 years of age and had served somewhere between 12 and 13 years of his sentences. The record shows he had been paroled several times but was returned to prison for violations. While Judge Eberlein gives his reasons for reducing the sentences, we do not reach the question of whether the three

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consecutive maximum sentences constituted cruel and unusual punishment on the facts.

The writ of certiorari is discretionary with this court. No good cause has been shown why over a year has been allowed to pass before the petitioner sought the aid of this court. The resentencing order might have been appealed within the time allowed for such an appeal but was not. Matters of this kind should be promptly reviewed if they are to be reviewed at all. We are not inclined to entertain the writ as a basis for reviewing what should have been brought up on appeal.

This view requires the dismissal or quashing of the writ but we deem it advisable because of the views expressed in the briefs to comment on the case of Hayes v. State (1970), 46 Wis.2d 93, 175 N.W.2d 625. The petitioner views Hayes as holding a trial court has no jurisdiction or power to reconsider sentencing after 90 days from the date of the original sentence. On this theory, it is claimed the resentencing by the court below is void. The respondent urges that Hayes should no longer be the law and is in conflict with the post-conviction remedy provided by sec. 974.06, Stats. Both views are in error. Hayes recognized the inherent power in a trial court to review its sentencing. The 90-[54 Wis.2d 617] day limitation is not jurisdictional but regulatory upon the exercise of that power. Hayes deals with the ordinary case of a rehearing on resentencing or a reconsideration thereof while the matter was fresh. Such an application is in the nature of reconsideration on the merits. For this reason a short period of time was provided within which the remedy would normally be used.

The respondent attempts to justify his jurisdiction on the ground the post-conviction remedy of sec. 974.06, Stats., in effect abrogates Hayes and any sentence may be reviewed without a time limit when it is claimed the sentence violates constitutional guarantees. Hayes was decided in the light of the application of sec. 974.06 providing a post-conviction remedy. That section has no time limitation within which the remedy may be sought, but the section is restricted to sentences imposed in violation of the...

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