Farley v. State, S

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtHALLOWS; I am authorized to state WILKIE
Citation50 Wis.2d 113,183 N.W.2d 33
PartiesJ. C. FARLEY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 39.
Docket NumberNo. S,S
Decision Date05 February 1971

The defendant, J. C. Farley, was arrested on May 7, 1967, and charged with having murdered Tommy Taylor, on May 6, 1967, in violation of sec. 940.01, Stats. On July 10, 1967, the defendant was arraigned, and he entered a plea of not guilty. His court-appointed counsel then made a motion to dismiss based on procedural flaws in the information and complaint. The court requested written briefs on this issue and gave counsel two weeks to file his brief. Bail had previously been set at $25,000. The defendant was indigent and could not make bail.

Nothing further was done with this case until January 17, 1968, when the clerk of court wrote to defendant's counsel and requested him to submit his brief which was now well over one-half year late. Counsel ignored this request for two months; and then, on March 8--after the defendant had been incarcerated for 305 days--counsel filed his brief. On April 18, the state filed its reply, and the motion to dismiss was denied.

The defendant's case was tried to a jury on May 1, 1968; and he was found guilty of second degree murder. The defendant was sentenced to an indeterminate term of not more than 12 years in the Wisconsin state prison.

We note that the defendant's post-conviction counsel, Mr. Rex Capwell, is not the same attorney who represented the defendant at trial. We also note that none of the issues raised on this appeal were raised on motions in the trial court requesting the relief which the plaintiff in error seeks on this appeal.

Rex Capwell, Racine, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, Gerald E. Clickner, Racine County Dist. Atty., Racine, for defendant in error.

HANLEY Justice.

Three issues are presented on this appeal:

(1) Did defendant's incarceration from arrest to time of trial, nearly one year, constitute a denial of his Sixth amendment right to a speedy trial;

(2) Was defendant entitled to a sentence 'credit' for time spent in confinement while awaiting trial; and

(3) Was the failure to give credit for time spent in confinement prior to trial a denial of equal protection, contrary to the Fourteenth amendment?

Within one year after imposition of sentence, defense counsel failed to present a motion to the trial court to exercise its inherent power to modify a criminal sentence. The time limits for bringing such a motion are set forth in Hayes v. State (1970), 46 Wis.2d 93, 175 N.W.2d 625.

The failure to present a motion for a review of the sentence deprived the trial court of the opportunity to consider the very question which is now presented upon appeal with reference to 'credit' for time served while awaiting trial.

This court would be compelled to speculate as to whether or not the trial court gave consideration to time served prior to trial in imposing sentence.

We hold that failure to present a motion at the trial court level to review a sentence bars the plaintiff in error from raising a question of impropriety as to sentence except under compelling circumstances, which do not appear in the case at bar.

The other two issues involve constitutional claims which were not raised at the trial level. 1 The general rule regarding this court's initial review of alleged constitutional errors was set forth in Bradley v. State (1967), 36 Wis.2d 345, 359, 153 N.W.2d 38, 44, 155 N.W.2d 564:

'This question was raised for the first time in the briefs that are before us on this appeal. We have frequently said that even the claim of a constitutional right will be deemed waived unless timely raised in the trial court. * * * We have, however, concluded that this court may nevertheless decide a constitutional question not raised below if it appears in the interest of justice to do so and where there are no factual issues that need resolution.'

From a review of the record in this case, it clearly appears that the interest of justice will not be served by reviewing the alleged...

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13 cases
  • Holmes v. State, S
    • United States
    • United States State Supreme Court of Wisconsin
    • 29 d5 Junho d5 1973
    ...to stage a lineup, that was clearly in error.' 15 See: Bullock v. State (1972), 53 Wis.2d 809, 193 N.W.2d 889; Farley v. State (1971), 50 Wis.2d 113, 183 N.W.2d 33; State v. Escobedo (1969), 44 Wis.2d 85, 170 N.W.2d 709; McLaughlin v. State (1966), 32 Wis.2d 124, 145 N.W.2d 153, certiorari ......
  • Stockwell v. State, S
    • United States
    • United States State Supreme Court of Wisconsin
    • 5 d2 Junho d2 1973
    ...N.W.2d 625, adopted a like a period to commence on the date of sentencing for a motion to modify a sentence. In Farley v. State (1971), 50 Wis.2d 113, 115, 183 N.W.2d 33, 34, this court stated '. . . failure to present a motion at the trial court level to review a sentence bars the (defenda......
  • State v. Tew, S
    • United States
    • United States State Supreme Court of Wisconsin
    • 30 d4 Março d4 1972
    ...it was for the legislature to adopt a rule such as the ABA Standard sec. 3.6 requiring a mandatory credit. In Farley v. State (1971), 50 Wis.2d 113, 116, 183 N.W.2d 33, in a dissenting opinion, this another and Mr. Justice Milkie favored adopting the ABA Standard but applying it as a releva......
  • Gaddis v. State, S
    • United States
    • United States State Supreme Court of Wisconsin
    • 12 d5 Abril d5 1974
    ...N.W.2d 755. 19 Sec. 946.43(2), Stats. 20 See: Hayes v. State (1970), 46 Wis.2d 93, 106, 175 N.W.2d 625. 21 See: Farley v. State (1971), 50 Wis.2d 113, 115, 183 N.W.2d 33; Tatum v. State (1971), 51 Wis.2d 554, 556, 187 N.W.2d 22 See: Whitmore v. State (1973), 56 Wis.2d 706, 203 N.W.2d 56; St......
  • Request a trial to view additional results

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