Nichols v. State, 75--133--CR
| Decision Date | 02 June 1976 |
| Docket Number | No. 75--133--CR,75--133--CR |
| Citation | 73 Wis.2d 90,241 N.W.2d 877 |
| Parties | Glenford J. NICHOLS, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. |
| Court | Wisconsin Supreme Court |
Howard B. Eisenberg, State Public Defender, submitted briefs, for plaintiff-in-error.
Bronson C. La Follette, Atty. Gen., and Albert O. Harriman, Asst. Atty. Gen., submitted brief for defendant-in-error.
The order to which the writ of error is directed affirms an order of the Rock County Court denying defendant Nichols' motion for post-conviction relief, under sec. 974.06, Stats., 1 from a conviction of operating a motor vehicle after revocation of his driver's license. The only issue decided on this appeal is that a defendant, having raised an issue by a 974.06 motion, must take an appeal from a denial of that motion in the first instance and cannot appeal from denial of a subsequent 974.06 motion covering the same issue.
On January 31, 1966, Mr. Nichols was convicted of driving while under the influence of an intoxicant. His Wisconsin driving privilege was revoked for one year; and pursuant to sec. 343.38(1)(c), Stats., 2 Mr. Nichols was required to furnish proof of financial responsibility for three additional years if he wished his driving privilege reinstated. There is nothing in the record indicating that Mr. Nichols ever furnished proof of financial responsibility or actively sought to have his Wisconsin driving privileges reinstated.
In July, 1967, Mr. Nichols obtained an Illinois driver's license. On January 31, 1970, the period during which Mr. Nichols had to file proof of financial responsibility to qualify for reinstatement of his Wisconsin driving privilege expired; and it is conceded that he had a valid Illinois driver's license at this point.
On May 6, 1971, in Marquette County Mr. Nichols was convicted of driving after revocation of his license in violation of sec. 343.44, Stats. (1969), based on the 1966 revocation of his Wisconsin driving privilege. His driving privilege was again revoked for one year.
On October 4, 1971, in Rock County Mr. Nichols was again convicted of driving after revocation; and again his privilege was revoked for one year.
On July 27, 1972, in Rock County Court Mr. Nichols was convicted for a third time of driving after revocation. Pursuant to sec. 343.44, Stats., 3 he was sentenced to a mandatory prison term of one year as a third offender.
In October, 1972, with the assistance of counsel Mr. Nichols filed a timely 974.06 motion for a new trial or post-conviction relief from the July 27, 1972, conviction. In that motion it was alleged that he had possessed a valid Illinois driver's license on December 31, 1970, when his obligation to file proof of financial responsibility lapsed, and that his Wisconsin driving privilege was reinstated as a matter of law under sec. 343.38(3), Stats. 4 It was further alleged that, as a result, his convictions for driving after revocation were invalid. In response to this first 974.06 motion, but for reasons not shown in the record, the Rock County Court reduced Mr. Nichols' sentence to six months. The court, however, did not set aside the conviction. No appeal was taken from this action of the court refusing to set aside the conviction. It is the denial of this motion that Mr. Nichols should have appealed, if he wished to have such appeal heard on the merits.
Mr. Nichols did not do this; but on June 20, 1973, through his counsel, he moved again under sec. 974.06, Stats., to reopen and dismiss the complaint underlying his third conviction of July 27, 1972. On October 16, 1973, the Rock County Court denied this motion in a written opinion noting that he had raised this issue in his first 974.06 motion and had taken no appeal therefrom. There was no appeal taken from this denial of the second 974.06 motion.
On June 18, 1974, Mr. Nichols filed a third 974.06 motion in Rock County Court. On August 5, 1974, this motion was denied, the court again noting that the basis for relief here had been raised previously. Mr. Nichols then appealed to the circuit court which affirmed the denial of the third 974.06 motion by the county court. The appeal to this court is from the denial of this third 974.06 motion. 5
Sec. 974.06(4), Wis.Stats., provides:
This statute makes it clear that, if the issue is initially raised under 974.06, there is no right to raise the same issue again under that statute. It follows that any appeal from a denial of relief under this statute must be taken from the first such denial, and not from some subsequent denial of the same motion.
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State v. Escalona-Naranjo
...of by a previous appeal. Peterson v. State, 54 Wis.2d 370, 381, 195 N.W.2d 837 (1972) (footnote omitted). See also Nichols v. State, 73 Wis.2d 90, 241 N.W.2d 877 (1976); Sass v. State, 63 Wis.2d 92, 216 N.W.2d 22 By contrast, the language of subsection (4) of sec. 974.06 was adapted from th......
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Leonard v. Warden, Dodge Correctional Inst.
...raised in a post-conviction motion may not be raised in a subsequent post-conviction motion. Wis.Stat. § 974.06(4); Nichols v. State, 73 Wis.2d 90, 94-95 (1976). Because the petitioner can no longer raise his double jeopardy claim in state court, he has exhausted his state remedies pursuant......
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Keith v. McCaughtry, 91-3768
...Keith, 468 N.W.2d 30, 1990 WL 262045, at * 1. In reaching this conclusion, the Wisconsin Court of Appeals cited Nichols v. State, 73 Wis.2d 90, 241 N.W.2d 877 (1976), a Wisconsin Supreme Court case in which Wis.Stat. Sec. 974.06(4) was held to require that an appeal be taken from the first ......
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State v. Cooper
...appealed. This precludes further attempts to raise the issue on subsequent sec. 974.06, Stats., motions. See Nichols v. State, 73 Wis. 2d 90, 94-95, 241 N.W.2d 877, 880 (1976) (appeal from denial of relief under sec. 974.06, Stats., must be taken from the first such denial, and not from som......