Peterson v. State, 75--253--CR
| Decision Date | 30 June 1976 |
| Docket Number | No. 75--253--CR,75--253--CR |
| Citation | 73 Wis.2d 417,243 N.W.2d 491 |
| Parties | Jon PETERSON, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. |
| Court | Wisconsin Supreme Court |
Richard M. Sals, Asst. State Public Defender, for plaintiff in error; Howard B. Eisenberg, State Public Defender, on brief.
Thomas J. Balistreri, Asst. Atty. Gen., for defendant in error; Bronson C. La Follette, Atty. Gen., and James H. McDermott, Asst. Atty. Gen., on brief.
This case requires setting forth the respective responsibilities of trial counsel and the trial court in establishing an adequate transcript of the proceedings at the time of trial.
Those responsibilities, and the procedure to be followed, are set forth for this state in sec. 274.117, Stats. That statute provides:
(Emphasis supplied.)
To challenge a proposed transcript of trial proceedings the challenging party must (1) prepare and serve proposed amendments upon all other parties; and (2) if such proposed amendments are not accepted with the time limit (20 days) for acceptance, such party must, within 10 days after the expiration of the time for acceptance, notice the approval of the transcript for hearing before the trial judge.
The requirement of hearing as to approval of the transcript, in the event of dispute between the parties, is repeated in the statute, sec. 274.119, Stats., providing for approval of the transcript when the trial judge is incapacitated to act or unavailable. That corollary statute provides that, in such event and where the parties cannot agree on the approval of the transcript, the presiding judge of the court (Emphasis supplied.)
The statutorily mandated procedure for correcting a transcript was not the course followed by this defendant. Instead, without seeking a hearing from the trial court about an unresolved dispute between the parties as to 'proposed amendments' submitted by the defendant, he instituted 974.06 proceedings, seeking a new trial on the ground that the transcript was not accurate or complete enough to serve as a basis for appeal.
The course thus pursued by this defendant has three inbuilt errors: (1) An erroneous assumption; (2) an erroneous interpretation of the responsibility of a litigant in disputing a transcript; and (3) an erroneous construction of the statutes involved.
The erroneous assumption is that a proposed transcript that is inaccurate in certain particulars must be presumed to be inaccurate in others. One that is incomplete anywhere is incomplete everywhere. However the statute clearly contemplates that a litigant, claiming or locating an inaccuracy or omission in a proposed transcript, is to submit 'proposed amendments.' If the adverse parties agree to such amendments, the transcript as amended is submitted for the approval of the trial judge. If the parties do not agree, there is a dispute and it is to be submitted to the trial judge to be resolved. Defendant's assumption is that, since there were amendments proposed and corrections made, it follows that '. . . there is certainly a strong presumption that similar omissions exist in the remainder of the transcript.' (Plaintiff in Error's Brief, page 9.) At best this is conjecture. Even if additional corrections are claimed to exist, it is the responsibility of the party so claiming to submit 'proposed amendments' to make such corrections. It is true that an egg that is at all bad is all bad. That is not true of a transcript of trial proceedings. Garl Schurz said of this country--'When right, to be kept right; when wrong, to be put right.' (Bartlett, Familiar Quotations (14th ed.) at page 733.) The same is true of a transcript. Here the responsibility to seek to make it right is on the party claiming it to be wrong.
The erroneous interpretation of the law is as to the duties and responsibilities of a party litigant in raising and resolving disputes as to the accuracy of a transcript of trial proceedings. Defendant sees this case as an 'opportunity (for this court) to clearly set out the responsibilities of both the court and court reporter with respect to providing transcripts which accurately reflect the court proceedings.' (Plaintiff in Error's Reply Brief, page 5.) That ignores the responsibility of the parties to the action to participate in the securing of an accurate transcript. That responsibility is spelled out in secs. 274.117 and 274.119, Stats. Here both the defendant and the district attorney were required by the statute to be participants, not spectators, in resolving any disputes between them as to the transcript. As to defendants appealing criminal convictions, out court has held: '. . . it is the general rule that the appellant has the duty to see that the evidence material to the appeal is in the record . . ..' (State v. Smith (1972) 55 Wis.2d 451, 459, 198 N.W.2d 588, 593.) Under the statute here applicable, both defendant and district attorney were required to seek to resolve any disputes between them and, failing in that endeavor, to submit to the trial judge for determination any 'proposed amendments' on which they could not agree. It is the litigating parties who, under the statute, have the laboring oar in agreeing upon a transcript or, if they cannot agree, bringing disputes as to amendments proposed by either of them to the trial judge for determination. The judge's role is limited to determining the disputes the parties present to him. As this court has said: 'The responsibility of seeing to it that only an accurate and complete transcript and record is approved is upon the appellant,' nothing that, 'The procedure for amending the record (if necessary) and for approval is outlined in sec. 274.117.' (Roney v. State (1969), 44 Wis.2d 522, 539, 171 N.W.2d 400, 407.)
The...
To continue reading
Request your trial
-
Clark v. State
...her to service against her will."18 Ordinarily the absence of a written record forecloses review of the question. Peterson v. State, 73 Wis.2d 417, 425, 243 N.W.2d 491 (1976); Smith v. State, 65 Wis.2d 51, 54, 221 N.W.2d 687 (1974). However where, as in the instant case, the proceedings can......
-
State v. Perry
...a similar "waiver" rule--that a corrective motion is a condition precedent to raising the issue on appeal. Peterson v. State, 73 Wis.2d 417, 422-23, 243 N.W.2d 491, 495 (1976); State v. Prober, 87 Wis.2d 423, 438-40, 275 N.W.2d 123, 129 (Ct.App.1978), rev'd on other grounds, 98 Wis.2d 345, ......
-
State v. Perry
...burden is merely to allege the error in the omitted portion of the transcript. Whatever the precedential value of Peterson v. State, 73 Wis.2d 417, 243 N.W.2d 491 (1976), and State v. Prober, 87 Wis.2d 423, 275 N.W.2d 123 (Ct.App.1978), in other respects, they are based upon the provisions ......
-
State v. DeLeon
...and established a procedure for correcting a defective transcript in this state. See sec. 817.117, Stats. (1975); Peterson v. State, 73 Wis.2d 417, 243 N.W.2d 491 (1976). This statute was repealed in 1978. See Sup.Ct.Order, 83 Wis.2d xxv, eff. July 1, 1978. As explained in the 1978 Judicial......