Mack v. State

• Decision Date: 08 January 1980
• Docket Number: No. 77-238-CR,77-238-CR
• Citation: 93 Wis.2d 287,286 N.W.2d 563
• Parties: Lawrence MACK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 563

286 N.W.2d 563

93 Wis.2d 287

Lawrence MACK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 77-238-CR.

Supreme Court of Wisconsin.

Argued Oct. 10, 1979.

Decided Jan. 8, 1980.

Ben Kempinen, Legal Assistance to Inmates Program, Madison, for plaintiff in error.

Betty R. Brown, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

DAY, Justice.

On June 13, 1977, the Circuit Court denied the postconviction motion of the plaintiff in error, Lawrence Mack (hereinafter the defendant) brought pursuant to sec. 974.06, Stats. (1977). The defendant pleaded guilty to the charge of forgery pursuant to sec. 943.38(1), Stats. (1975) and to a charge of attempted theft on November 12, 1975. The postconviction motion and this writ of error challenges only the forgery conviction.

The principal question presented for review is whether the co-existence of the forgery and credit card crimes statutes violates equal protection either facially or as applied. We conclude that they do not and affirm.

The facts in this case are not disputed. On August 7, 1975, Brian DeRoche's wallet was stolen from his jacket, which was hanging in his office at work. In the stolen wallet was a Master Charge credit card issued in his name. The defendant obtained possession of the card from a man known to him only as "Bilbo." Bilbo acquired this and other cards from O. C. McMurray. McMurray was to receive twenty-five percent of the total value of all purchases made with the credit cards.

The defendant, Mack, used the credit card to purchase four tires from a General Tire Service store in Milwaukee. The store manager sold the tires to Mack, each having a retail value of $100.41, the total purchase price coming to $417.71. In order to complete the purchase Mack signed both a store sales invoice and the Master Charge credit slip with the name "B. N. DeRoche." At no time did he have Mr. DeRoche's consent to use the card. An employee of the store observed him sign the Master Charge slip. The transaction took place on August 7, 1975, the same day that the wallet was stolen from Mr. DeRoche. The store manager loaded the tires into the trunk of a 1973 Cadillac belonging to a friend of the defendant.

Later that day, the defendant attempted to purchase a diamond ring valued at $890 from the Lebolt & Company Jewelry Store in Wauwatosa. The salesman at the store was presented with the card belonging to Mr. DeRoche for payment of the ring, and contacted the Master Charge company to obtain verification for the purchase. By that time, Mr. DeRoche had contacted the credit company and informed them of the theft. The salesman was informed by the company that the card was stolen. Mack then left the store excusing himself for the purpose of making a phone call and was apprehended shortly thereafter by the police.

The defendant admitted that he used the credit card to purchase the tires from the General Tire store which were recovered from the Cadillac, as were four other tires purchased with the same credit card from a Firestone store. The defendant was charged with forgery under sec. 943.38(1), Stats. (1975) for forging the name of Mr. DeRoche on the Master Charge sales slip at the General Tire store. He was also charged with attempted fraudulent use of a credit card in the Lebolt & Company incident and with the attempted theft of a diamond ring from a Gimbels Department store. Finally, he was charged with the fraudulent use of a credit card belonging to Terrence R. Watts, used in an attempt to purchase a pair of shoes from a Thayer McNeil Shoe Store in Milwaukee.

After preliminary examination and bindover on the forgery charge, the defendant, who was represented by retained counsel, entered a plea of not guilty. The defendant's counsel and the assistant district attorney discussed and finally agreed upon a plea bargain in respect to the four pending charges. The defendant agreed to plead guilty to the forgery and attempted theft charges in exchange for the district attorney's promise to dismiss and "read in" the two charges of attempted fraudulent use and fraudulent use of a credit card. The district attorney was to recommend imprisonment on the forgery charge and was to make no recommendation as to the attempted theft charge.

In accordance with this agreement, the defendant withdrew his plea of not guilty and entered a plea of guilty to the forgery and attempted theft charges. The circuit court examined the defendant and was satisfied that the plea was made voluntarily, freely and with full understanding of the potential penalties. After establishing a factual basis for the plea, through the testimony of the defendant and detective Gerald Wrobelewski of the Milwaukee Police Department, the plea was accepted by the court. A pre-sentence investigation report was ordered to aid in sentencing.

On January 8, 1976, the defendant was sentenced to not more than five years in the state prison on the forgery conviction and was given a concurrent two year sentence for the attempted theft conviction.

The motion for postconviction relief alleged that the prosecutor was required to charge the defendant with the fraudulent use of a credit card under sec. 943.41(5)(a)(2), Stats., rather than the crime of forgery. It was also alleged that if the district attorney had the discretion to charge forgery or a violation of the credit card crimes statute, the constitutional principles of separation of powers and equal protection were violated.

The scope of judicial review under sec. 974.06, Stats., is quite narrow and precludes all claims except those expressly enumerated. They are:

"(Whether) the sentence was imposed in violation of the U. S. constitution or the constitution or laws of this state, . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack . . . ." See, State v. Chabonian, 55 Wis.2d 723, 725, 201 N.W.2d 25, 26 (1972).

The general rule applied in Wisconsin is that a guilty plea, voluntarily and understandingly made constitutes a waiver of non jurisdictional defects and defenses including claims of violations of constitutional rights prior to the plea. Foster v. State, 70 Wis.2d 12, 19, 233 N.W.2d 411 (1975); Hawkins v. State, 26 Wis.2d 443, 448, 132 N.W.2d 545 (1965); See, also, Lefkowitz v. Newsome, 420 U.S. 283, 288, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 16 L.Ed.2d 235 (1973). ¹ To try a person for a criminal offense, the trial court must have jurisdiction over the person of the defendant and over the subject matter. Jurisdiction over the subject matter is derived from law and cannot be waived nor conferred by consent. State ex rel. La Follette v. Raskin, 30 Wis.2d 39, 45, 139 N.W.2d 667 (1966).

The first claim made by the defendant is that the trial court had no subject matter jurisdiction over the charge of forgery on the facts in this case. Because subject matter jurisdiction in non-waivable, it may be raised by appeal or by a motion under sec. 974.06, Stats.

Criminal subject matter jurisdiction is defined as the power of the court to inquire into the charged crime, to apply the applicable law and to declare the punishment in a court of a judicial proceeding. The power is one conferred by law. Kelly v. State, 54 Wis.2d 475, 479, 195 N.W.2d 457 (1972); Pillsbury v. State, 31 Wis.2d 87, 94, 142 N.W.2d 187 (1966). A court has subject matter jurisdiction where it has been authorized to hear and determine the primary object of the action. Galloway v. State, 32 Wis.2d 414, 420, 145 N.W.2d 761, 147 N.W.2d 542 (1966).

The circuit courts in Wisconsin are courts of general jurisdiction. They have original subject matter jurisdiction of all matters, civil and criminal, not excepted in the constitution or prohibited by law. Dumer v. State, 64 Wis.2d 590, 595, 219 N.W.2d 592 (1974). At the time of the defendant's guilty plea and conviction, the Wisconsin Constitution, Article VII, sec. 8 provided:

"Circuit Court, Jurisdiction. SECTION 8. The circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law; and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions."

Sec. 252.03, Stats. (1975) provided:

"252.03. Jurisdiction of circuit courts. The circuit courts have the general jurisdiction prescribed for them by the constitution and have power to issue all writs, process and commissions provided therein or by the statutes, or which may be necessary to the due execution of the powers vested in them. They have power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings unless exclusive jurisdiction is given to some other court; and they have all the powers, according to the usages of courts of law and equity, necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration of justice, and to carry into effect their judgments, orders and other determinations, subject to reexamination by the supreme court as provided by law. . . ."

If the criminal complaint is defective, or if the defendant is convicted under an invalid law, the conviction itself is not void. The circuit court still has subject matter jurisdiction to render its judgment. Even where the error in the law or proceedings is fatal to the prosecution, the circuit court has the power to inquire into the sufficiency of the...