Ellsworth v. State
| Decision Date | 06 March 1951 |
| Parties | ELLSWORTH, v. STATE. |
| Court | Wisconsin Supreme Court |
Sullivan and Beaudry, Michael T. Sullivan, and Robert J. Beaudry, all of Milwaukee, for plaintiff in error.
Thomas E. Fairchild, Atty. Gen., William, A. Platz, Asst. Atty. Gen., for defendant in error.
The defendant was charged in count one of the information with larceny of one Society brand suit of the value of $95, committed on January 13, 1950, at the city of Neenah.
Sec. 343.17, Stats., provides in part as follows: 'Any person, who shall commit the crime of larceny by stealing the property of another, any money, goods or chattels, * * * if the value thereof shall not exceed one hundred dollars and shall exceed twenty dollars, he shall be punished by imprisonment in the state prison or county jail not more than one year nor less than six months or by fine not exceeding two hundred dollars * * *.'
On October 24, 1950 a second count, charging conspiracy, was dismissed on motion of the district attorney. At that time the defendant, being personally present and represented by counsel, pleaded nolo contendere to the first count and the court accepted his plea and adjudged him guilty thereon. The court then stated:
Evidence was then introduced by the state establishing that on March 29, 1949, defendant was convicted in the superior court in and for the county of Los Angeles, California, on two counts of burglary in the second degree and was sentenced to two consecutive terms in the county jail of Los Angeles county, each of said sentences being for the period of six months; and that on September 27, 1949 the defendant pleaded guilty to a criminal charge in the district court for Douglas county, Nebraska, and was sentenced to pay a fine of $100 and costs taxed at $14.50.
Court adjourned to November 6, 1950, at which time the law applicable to the penalties of this case was argued in detail by counsel for the defendant and the district attorney, and the court then pronounced the judgment and sentenced defendant pursuant to the 'repeater statute,' sec. 359.13, Stats.1947.
Defendant now asserts that the trial court was in error in adjudging the plaintiff in error guilty on his plea of nolo contendere 'when the trial court did not examine the information and the state did not introduce any evidence to substantiate the alleged larceny.' Defendant's plea is a waiver of proof.
The record shows that the court knew the contents of the information as it stated: 'You are entering a plea of nolo contendere to count No. 1 of the information, which charges the larceny of one suit of clothes alleged to have been stolen from Lohse's Exclusive Tailor Shop at Neenah?' This was answered affirmatively by defendant's counsel.
The plea of nolo contendere admits matters alleged in the information when the plea is entered, and places the defendant in the same position as though he had pleaded guilty or had been found guilty by the verdict of a jury. Brozosky v. State, 1928, 197 Wis. 446, 451, 222 N.W. 311.
We set this out in detail because counsel for defendant argued at great length that the defendant was deprived of some rights. Nothing produced in the argument, the briefs or the proceedings as shown by the bill of exceptions before or after the plea of the defendant, tends in any way to overcome the presumption of regularity which attends all court proceedings.
Sec. 359.13, Stats.1947, is applicable to the crime committed prior to July 1, 1950, notwithstanding that sentence was imposed after that date. That statute provides: 'When any person is convicted of any offense punishable by imprisonment in the state prison or in the county jail, in the discretion of the court, and it is alleged in the indictment or information and proved or admitted on the trial or ascertained by the court after conviction that he had been before sentenced to imprisonment, either in any state prison or county jail, by any court of this state or of any other state or of the United States, and that such sentence remains of record and unreversed, whether pardoned therefor or not, he may be punished by imprisonment in the state prison not less than the shortest time fixed for such offense and not more than five years, or in the county jail not less than the shortest time fixed for said offense and not more than one year.'
Sec. 171, ch. 631, Laws 1949, consolidated secs. 359.12 to 359.15, Stats.1947, and renumbered them sec. 359.12, to read as they appear in the 1949 statutes.
Sec. 244, ch. 631, Laws 1949, provides as follows: ...
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