Armstrong v. State, No. 202
| Court | United States State Supreme Court of Wisconsin |
| Writing for the Court | HEFFERNAN |
| Citation | 55 Wis.2d 282,198 N.W.2d 357 |
| Docket Number | No. 202 |
| Decision Date | 30 June 1972 |
| Parties | Lawrence ARMSTRONG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. State |
Page 357
v.
STATE of Wisconsin, Defendant in Error.
[55 Wis.2d 283] The defendant, Lawrence Joseph Armstrong, was charged with burglarizing the Left Guard Charcoal House on February 6, 1971, and Kyle's Garage on February 5, 1971. The defendant and an accomplice [55 Wis.2d 284] were apprehended while in the act of burglarizing the Left Guard restaurant. At the time of the apprehension defendant was attempting to open the safe with a lighted acetylene torch. Investigation revealed that the torch had been taken from Kyle's Garage a day earlier.
The defendant made an initial appearance before County Judge William L. Buenzli on February 8, 1971. Counsel was appointed and a preliminary examination was set for February 11. The preliminary examination was not held until March 1, 1971. Prior to the commencement of that hearing, the defendant, by court-appointed counsel, objected to the preliminary examination because, in violation of sec. 970.03(2), Stats., it was held more than ten days after the initial appearance, while the defendant was in custody. The magistrate denied the defendant's motion, proceeded to find probable cause, and bound Armstrong over to the circuit court for trial.
The defendant was arraigned on March 11, 1971, before Circuit Judge W. L. Jackman. He waived the reading of the information and pleaded guilty to both counts. After a colloquy between the court and the defendant, which included pointing out to Armstrong that he could be sentenced to ten years on each count, the pleas of guilty were accepted, and the defendant was found guilty on both counts. Following a presentence investigation, the trial judge, in accordance with the state's recommendation, sentenced the defendant to two concurrent terms to be served at the state prison. The defendant, by counsel appointed in this court, brought an order to show cause why the judgment and sentence should not be set aside. The motion was in fact a motion to withdraw the pleas of guilty. The motion was denied, and an order entered November 12, 1971. The writ of error is to review the order of that date.
[55 Wis.2d 285] Thomas W. Bertz, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
Page 358
HEFFERNAN, Justice.
Defendant asserts that the conviction was a nullity because the court did not have personal jurisdiction over the defendant. His counsel correctly points out that the preliminary examination was not timely held. He is also correct when he states that the failure to hold the preliminary examination within the time provided by statute results in the loss of personal jurisdiction over the defendant. Crummel v. State (1970), 46 Wis.2d 348, 174 N.W.2d 517; Logan v. State (1969), 43 Wis.2d 128, 168 N.W.2d 171.
It is apparent that where, as here, a proper objection has been made to the holding of the preliminary, the magistrate was without jurisdiction to proceed further. Although jeopardy had not attached and, therefore, Armstrong could have been immediately recharged, it would have been appropriate, at this juncture, for the magistrate to dismiss the complaint. The defendant, however, did not stand on his objection at the time of arraignment. Since the record shows that defendant and his counsel asserted the lack of personal jurisdiction at the time the preliminary examination was called, it is apparent that the subsequent pleas to the information constituted a knowledgeable waiver of the previously asserted defense of lack of personal jurisdiction. A defense based on lack of personal jurisdiction is waived by pleading to the information. Belcher v. State...
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State v. Lee, Appeal No. 2019AP221-CR
...for the commencement of the trial itself?" Id. at 386-87, 164 N.W.2d 303. Other cases echo these holdings. See Armstrong v. State , 55 Wis. 2d 282, 285, 198 N.W.2d 357 (1972) ; Godard , 55 Wis. 2d at 190-91, 197 N.W.2d 811 ; Logan v. State , 43 Wis. 2d 128, 138-39, 168 N.W.2d 171 (1969). ¶6......
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State v. Nash, No. 2018AP731-CR
...the sexual assaults they suffered.3 State ex rel. White v. Gray, 57 Wis. 2d 17, 21-22, 203 N.W.2d 638 (1973) ; Armstrong v. State, 55 Wis. 2d 282, 286-88, 198 N.W.2d 357 (1972).4 Echoes of a Muted Trumpet can be accessed at https://fedsoccms-public.s3.amazonaws.com/update/pdf/PcJMmPtH2g0Seh......
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State v. Lee, 2019AP221-CR
...to hold a timely preliminary examination is dismissal without prejudice for lack of personal jurisdiction. See, e.g., Armstrong v. State, 55 Wis. 2d 282, 285, 198 N.W.2d 357 (1972) ; Crummel v. State, 46 Wis. 2d 348, 356, 174 N.W.2d 517 (1970) ; State ex rel. Klinkiewicz v. Duffy, 35 Wis. 2......
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State v. Horton, No. 87-2444-CR
...2 Failure to hold a preliminary hearing within the statutory time limits results in a loss of personal jurisdiction. Armstrong v. State, 55 Wis.2d 282, 285, 198 N.W.2d 357, 358 (1972). However, the right to a preliminary[151 Wis.2d 256] examination is purely a statutory right. State v. Dunn......
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State v. Lee, Appeal No. 2019AP221-CR
...for the commencement of the trial itself?" Id. at 386-87, 164 N.W.2d 303. Other cases echo these holdings. See Armstrong v. State , 55 Wis. 2d 282, 285, 198 N.W.2d 357 (1972) ; Godard , 55 Wis. 2d at 190-91, 197 N.W.2d 811 ; Logan v. State , 43 Wis. 2d 128, 138-39, 168 N.W.2d 171 (1969). ¶6......
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State v. Nash, No. 2018AP731-CR
...the sexual assaults they suffered.3 State ex rel. White v. Gray, 57 Wis. 2d 17, 21-22, 203 N.W.2d 638 (1973) ; Armstrong v. State, 55 Wis. 2d 282, 286-88, 198 N.W.2d 357 (1972).4 Echoes of a Muted Trumpet can be accessed at https://fedsoccms-public.s3.amazonaws.com/update/pdf/PcJMmPtH2g0Seh......
-
State v. Lee, 2019AP221-CR
...to hold a timely preliminary examination is dismissal without prejudice for lack of personal jurisdiction. See, e.g., Armstrong v. State, 55 Wis. 2d 282, 285, 198 N.W.2d 357 (1972) ; Crummel v. State, 46 Wis. 2d 348, 356, 174 N.W.2d 517 (1970) ; State ex rel. Klinkiewicz v. Duffy, 35 Wis. 2......
-
State v. Horton, No. 87-2444-CR
...2 Failure to hold a preliminary hearing within the statutory time limits results in a loss of personal jurisdiction. Armstrong v. State, 55 Wis.2d 282, 285, 198 N.W.2d 357, 358 (1972). However, the right to a preliminary[151 Wis.2d 256] examination is purely a statutory right. State v. Dunn......