Godard v. State

• Citation: 55 Wis.2d 189,197 N.W.2d 811
• Decision Date: 08 June 1972
• Docket Number: No. S,S
• Parties: Victor GODARD, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 220.
• Court: United States State Supreme Court of Wisconsin

Page 811

197 N.W.2d 811

55 Wis.2d 189

Victor GODARD, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 220.

Supreme Court of Wisconsin.

June 8, 1972.

Victor Godard on March 1, 1968, was charged in a complaint with two forgeries involving two checks in the amount of $55 each. He pleaded guilty on March 29th and was sentenced to eight years in the reformatory at Green Bay, but the sentence was stayed and he was placed on probation for the same period. About three months later on July 2d, his probation was revoked because he was found guilty of committing a crime while on probation. Some two years later on November 24, 1970, he filed a post-conviction petition pursuant to sec. 974.06, Stats., alleging: (1) His preliminary hearing had been adjourned for over a year without his consent, which deprived the court of jurisdiction to convict him, (2) an eight-year sentence for forgery of two $55 checks constituted cruel and unusual punishment; and (3) other issues. His post-conviction petition was denied, and to review the denial he brings this writ of error.

Victor Godard, pro se.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HALLOWS, Chief Justice.

It is true Godard on February 17, 1967, was named in a criminal complaint and the preliminary hearing was adjourned twice, the latter time indefinitely. A year later the complaint was filed and a preliminary hearing had. But this unexplained long delay in holding a preliminary hearing of one charged with crime did not deprive the court of jurisdiction although sec. 954.05(1), Stats. 1967, ¹ in effect at the time of the complaint required the consent of the defendant for an adjournment exceeding 10 days. A violation of the section causes the court to lose only personal jurisdiction of the defendant and not jurisdiction of the subject matter. Consequently, when Godard pleaded guilty to the information after the bind over, he waived the loss of personal jurisdiction. Actually his failure to object at the preliminary hearing was a waiver. Logan v. State (1969), 43 Wis.2d 128, 138, 168 N.W.2d 171; Flowers v. State (1969), 43 Wis.2d 352, 366, 168 N.W.2d 843; Crummel v. State (1970), 46 Wis.2d 348, 356, 174 N.W.2d 517. Although there is some language in State ex rel. Klinkiewicz v. Duffy (1967), 35 Wis.2d 369, 151 N.W.2d 63, relied on by Godard, which indicates a trial court loses subject-matter jurisdiction under sec. 954.05(1), our more recent cases of Logan, Flowers, and Crummel are unequivocal in their language that the loss of jurisdiction under this section is only of the personal jurisdiction over the defendant. While not relevant to this holding, we point out that sec. 954.05(1) is no longer in the statutes and an adjournment of a preliminary hearing, now governed by sec. 970.03(2), Stats., ² does not require the consent of the defendant.

Godard argues his sentence of eight years for uttering two checks of $55 each is so excessive as to constitute cruel and unusual treatment. We have said the test of cruel and unusual punishment is whether the sentence is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. State v. Seraphine (1954), 266 Wis. 118, 122, 62 N.W.2d 403; State v. Pratt (1967), 36 Wis.2d 312, 322, 153 N.W.2d 18; Hanson v. State (1970), 48 Wis.2d 203, 206, 179 N.W.2d 909; Mallon v. State (1970), 49 Wis.2d 185, 192, 181 N.W.2d 364; State v. Morales (1971), 51 Wis.2d 650, 657, 187 N.W.2d 841; State...