Patelski v. Cady, 70-C-121.
Decision Date | 08 June 1970 |
Docket Number | No. 70-C-121.,70-C-121. |
Citation | 313 F. Supp. 1268 |
Parties | Leroy PATELSKI, Petitioner, v. Elmer O. CADY, Warden, Respondent. |
Court | U.S. District Court — Eastern District of Wisconsin |
Leroy Patelski, pro se.
Robert W. Warren, Atty. Gen., by William A. Platz, Asst. Atty. Gen., Madison Wis., for respondent.
DECISION and ORDER
The petitioner seeks a writ of habeas corpus for his release from the Wisconsin state prison at Waupun. He has also moved for the appointment of counsel.
The Wisconsin supreme court denied his petition for habeas corpus in an unreported opinion, No. 70-31. Permission to file in forma pauperis has been granted in the present action, and the state has filed a return to the petition.
Mr. Patelski is currently serving a term of imprisonment for 25 years. He was charged with first degree murder while committing a robbery. The case was submitted to a jury on four verdicts: guilty of murder in the first degree, in the second degree, in the third degree, or not guilty. No separate verdict was submitted with respect to the robbery.
The petitioner was convicted of murder in the third degree. The court sentenced him to a term of imprisonment for 25 years, indicating that 10 years were for the underlying felony and 15 years were for the resulting death.
The petitioner attacks the 10 year portion of the sentence as either excessive or based upon an assumed felony for which he had not been charged:
In my opinion, the petitioner's claim is without merit. Section 939.66 (2), Wis.Stats., provides:
Having been found guilty of a homicide which occurred during the commission of a felony, the petitioner was thereby also found guilty of the underlying felony. In State v. Carlson, 5 Wis.2d 595, 608, 93 N.W.2d 354 (1958), the Wisconsin supreme court observed:
Under these circumstances, § 940.03, Wis.Stats. provides for a heightened punishment:
"Whoever in the course of committing or attempting to commit a felony causes the death of another human being as a natural and probable consequence of the commission of or attempt to commit the felony, may be imprisoned not more than 15 years in excess of the maximum provided by law for the felony."
Section 943.32, Wis.Stats. provides for a maximum term of imprisonment of 10 years for robbery.
The petitioner was not separately charged with both the murder and the robbery, nor was he convicted or given consecutive sentences for each. Thus, Ronzani v. State, 24 Wis.2d 512, 129 N.W.2d 143 (19...
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Stallings v. State of South Carolina
...of North Carolina (D.C. N.C.1969), 314 F.Supp. 249, 251, appeal dismissed 4 Cir., 429 F.2d 622 (July 15, 1970); Patelski v. Cady (D.C.Wis.1970), 313 F.Supp. 1268, 1270; Wheeler v. Peyton (D.C.Va.1968), 287 F.Supp. 930, Petition dismissed. And it is so ordered. 1 Section 16-72, Code of South......