Gibson v. State
| Decision Date | 01 July 1970 |
| Docket Number | No. 138,138 |
| Citation | 177 N.W.2d 912,47 Wis.2d 810 |
| Parties | Sanford GIBSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. State |
| Court | Wisconsin Supreme Court |
This is before the court on a writ of error to review the conviction and sentencing of Sanford Gibson to ten years on a count of armed robbery and a five-year period of probation on another count of robbery. It appears that, following the defendant's pleas of guilty on March 6, 1969, to both charges, the defendant moved to withdraw his pleas of guilty. The motion to withdraw the pleas was denied on April 23, 1969, and sentencing followed on the next day.
It appears that Sanford Gibson was a seventeen-year-old boy. He was charged with armed robbery in Waukesha county and was also charged with robbery in Milwaukee county. Charges were consolidated for trial in the Waukesha county court, branch II. Attorney James V. Collins was appointed to represent the defendant on January 9, 1969. On January 13, 1969, Attorney Collins was also appointed as guardian ad litem.
Originally, the defendant requested a preliminary hearing. Following the motion for consolidation of the charges, the defendant waived his right to a preliminary hearing, and on March 6, 1969, pleaded guilty to both charges. Following the pleas, the defendant indicated his dissatisfaction with his counsel, and the court relieved Attorney Collins and appointed Attorney Eugene Johnson as counsel and as guardian ad litem on April 7, 1969.
The defendant asserts that the trial court abused its discretion in not granting his motion to withdraw his guilty pleas and also contends that his Sixth Amendment right to the assistance of counsel was denied him because the court appointed the same attorney as defense counsel and as guardian ad litem.
David F. Gerlach, Brookfield, for plaintiff in error.
Robert W. Warren, Atty. Gen., William A. Platz and Mary V. Bowman, Asst. Attys. Gen., Madison, Roger P. Murphy, Waukesha Co. Dist. Atty., Waukesha, for defendant in error.
The briefs and arguments raised only the contentions stated above. However, at the very outset we are confronted with the question of whether the county court of Waukesha county, exercising its authority to try criminal cases pursuant to sec. 253.12, Stats., had jurisdiction to arraign, commit, and sentence the seventeen-year-old Gibson on the armed robbery charge that arose in Waukesha county.
On December 4, 1968, the Milwaukee county court, Children's Division, entered an order waiving the juvenile jurisdiction of that court over the matter of the alleged delinquency of Sanford Gibson. The recitals therein indicated that Gibson had been charged as a delinquent for violations of sec. 943.32, Stats. (robbery), and Sec. 939.05 (). It was ordered that the matter be referred to the district attorney and that Gibson be transferred to the custody of the Waukesha county sheriff's department. The record does not indicate that the charge under consideration at the time of waiver in Milwaukee county included the armed robbery that occurred in waukesha on November 14, 1968. Rather, it most likely refers to only the charge that arose in Milwaukee county--the robbery on September 12, 1968. If such is the case, then the county court of Waukesha County acquired criminal jurisdiction of the Milwaukee crime only and did not acquire jurisdiction of the crime alleged to have occurred in Waukesha. If those are the circumstances, the plea of guilty and judgment of conviction of March 6, 1969, and the ten-year sentence imposed on April 24, 1969, are wholly void and must be vacated.
On January 9, 1969, the defendant made an appearance before the county court of Waukesha county and asked for appointment of counsel. During the course of this appearance the following colloquy took place:
This proceeding in the criminal jurisdiction of the Waukesha county court cannot, of course, constitute a proper waiver of juvenile court jurisdiction over the crime committed in Waukesha county. The hearing is ambiguous. Judge Callow believed, perhaps correctly, that the Milwaukee county court, Children's Division, had waived its juvenile jurisdiction to Waukesha county in respect to the armed robbery that occurred in Waukesha county. This the Milwaukee Children's Court could do, since venue can lie 'where the child resides, the county where he is present or, in the case of a violation of a state law * * * where the violation occurred' (sec. 48.16, Stats.).
Thus, if Gibson had been charged with delinquency in Milwaukee county for a Waukesha county act, that court would, in the exercise of its jurisdiction, be a proper venue for the exercise of the waiver of juvenile jurisdiction and a reference to Waukesha county. The record, however, does not show that this was, in fact, done.
A juvenile court is to 'review each case on its individual merits' (sec. 48.01(2)(a), Stats.). In the instant case, it is impossible to tell from the record before us whether the Milwaukee Children's Court waived jurisdiction on only one or on both counts with which Gibson was eventually charged in Waukesha county court.
In Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, the United States Supreme Court determined that the waiver of juvenile jurisdiction is a 'critically important' portion of the criminal proceeding where a juvenile stands accused.
The children's code (ch. 48, Stats.) provides that 'exclusive jurisdiction' is vested in the juvenile court over any child who is alleged to be delinguent because he has 'violated any state law' (sec. 48.12(1), Stats.). 'Child' is defined as a person under eighteen (sec. 48.02(3)). Only if juvenile jurisdiction is waived as provided in sec. 48.18 can a child charged with a crime against the state be prosecuted in an adult criminal court.
While the county court of Waukesha county had personal jurisdiction of Gibson by his appearance, it could acquire subject matter jurisdiction only after a proper waiver of jurisdiction by the juvenile court.
Criminal subject matter jurisdiction was defined in Pillsbury v. State (1966), 31 Wis.2d 87, 94, 142 N.W.2d 187. The court said therein:
'Criminal jurisdiction of the subject matter is a power of a court to inquire into the charge of the crime, to apply the law, and to declare the punishment in the court of a judicial proceeding and is conferred by law.'
In State ex rel. La Follette v. Raskin (1966), 30 Wis.2d 39, 45, 139 N.W.2d 667, the court stated, '* * * jurisdiction of subject matter is derived from law and cannot be waived nor conferred by consent. * * *' Accordingly, even though there has been no objection by Gibson to his arraignment in the criminal court, the conviction is void ab initio unless the juvenile court has ceded its jurisdiction to the criminal court in regard to each particular charge contained in the information.
We would prefer not to set aside the sentence of a defendant who a careful, considerate, and humane judge has determined should be incarcerated for a term of ten years, but if the trial court was without jurisdiction, we have no alternative.
The earliest report of the Wisconsin appellate court contains the following declaration:
'* * * whenever want of jurisdiction is made to appear at any stage of the cause, it is the duty of the court to dismiss the case from its consideration.' Dewey v. Hyde (1844), 1 Wis. (Pinney) 469, 470.
This court has continued to follow the precedent of Dewey v. Hyde. In Sheehan v. Industrial Comm. (1956), 272 Wis. 595, 601, 76 N.W.2d 343, we pointed out that it was the duty of this court to dismiss the action 'when a want of jurisdiction appears at any stage of the cause.'
In the recent case of Estate of Hillery (April 1970), Wis., 176 N.W.2d 376, this court asserted its unquestioned right to dismiss an appeal for want of jurisdiction although the parties to the lawsuit had not raised the question.
The clerk of the Waukesha county court has assured this court that we have on file the complete record of this case and that there is nothing of record to show the waiver of juvenile jurisdiction over the Waukesha county charge. However, the inquiry into the efficacy of a juvenile court waiver of jurisdiction properly should be the subject of a judicial hearing.
Accordingly, we conclude that the cause should be remanded to the county court of Waukesha county for a hearing to determine the scope and extent of the juvenile court waiver of jurisdiction by the Milwaukee county Children's Court ordered on January 4, 1969. 1
A juvenile court can only waive its jurisdiction with respect to charges of delinquency that are actually before it. In the instant case exclusive jurisdiction of the Milwaukee county Children's Court could only be waived if the charge constituting the armed robbery in Waukesha county was alleged in the juvenile petition or was otherwise intended to be included in its waiver of jurisdiction. The same is, of course, true in respect to the Milwaukee county charge and a similar inquiry should be made in respect to the waiver of juvenile jurisdiction on that count.
In the event that the county court finds that jevenile court jurisdiction was appropriately waived in respect to each count, the judgment is affirmed. If...
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