Peterson v. State
| Decision Date | 30 March 1972 |
| Docket Number | No. S,S |
| Citation | 54 Wis.2d 370,195 N.W.2d 837 |
| Parties | Larry A. PETERSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 185. |
| Court | Wisconsin Supreme Court |
A motion for postconviction relief pursuant to sec. 974.06, Stats., was filed by defendant on June 4, 1971. This motion was denied by the circuit court. Defendant, represented by the State Public Defender, brings this writ of error to review the order denying such postconviction relief. There is no writ of error to review the judgment of conviction.
James H. McDermott, State Public Defender, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
The public defender raises 11 alleged errors on the part of the trial court, each of which error was never presented to the trial court. These alleged errors fall into three categories:
1. Four are asserted raising questions concerning the jurisdiction of the trial court to take the guilty pleas.
2. One alleged error questions the procedure followed by the trial court when considering defendant's postconviction motion made under sec. 974.06, Stats.
3. The remaining alleged errors involve the trial court's acceptance of the guilty pleas.
This court has often stated the basic rule that unless the error involves some constitutional claim as a matter of right to the appellant, this court will not consider errors which were not presented below. 1 None of the alleged errors urged here are of constitutional dimensions.
This court has held, however, that in unusual circumstances, in its discretion, it will review such errors 2 where the error goes directly to the issue of guilt. 3
In the circumstances of the present case we choose to consider the first four alleged errors raised by the public defender because they all arguably go to the trial court's jurisdiction. We also choose to consider the error claimed [54 Wis.2d 375] in the trial court's procedure in considering the sec. 974.06, Stats., motion because it raises fundamental questions concerning that procedure which are of general application throughout the state. And finally, we choose to consider the remaining alleged errors regarding the acceptance of the guilty pleas because each of these alleged errors has no merit and this court is anxious to spare the trial court a new motion under sec. 974.06, which would only present points for its consideration and which, after denial for no merit, would merely cause another appeal here on matters which can be disposed of at this point.
A. Time of filing amended information. The defendant entered his guilty pleas to the amended (consolidated) information before such amended information was formally received or filed with the court. The public defender asserts that this fact violates sec. 971.09(3), Stats., and thereby deprives the trial court of jurisdiction to accept the pleas.
Sec. 971.09(3), Stats., provides:
. .
Here the court first ascertained that the plea to each of the charges was voluntary and then ordered the amended complaint received and filed. While such a procedure may be a technical violation of the statute, by not raising the point in the trial court, the defendant and his trial counsel waived this late filing. Following the colloquy between defendant and the court relating to the voluntariness of the pleas to the amended (consolidated) information, the following appears of record:
Thus, any error was clearly waived. Additionally, the trial court here corrected any error which might have occurred by again questioning defendant about his plea after the amended information was filed and received.
The public defender argues that the circuit court in this case did not have jurisdiction of the consolidated offenses because it accepted the pleas before receiving the amended information. Under sec. 971.09, Stats., the district attorneys of the counties in which the crimes were committed Sec. 971.26, Stats., provides:
consent to the acceptance of the pleas in the county where the most serious offense took place. In this case that was done prior to the acceptance of the pleas. Moreover, defendant waived the right to [54 Wis.2d 377] be tried in the counties in which the crimes took place; this too prior to the date the pleas were entered. Thus the court had jurisdiction to accept the consolidated plea.
In this case the alleged errors are formal and do not prejudice defendant in any way.
B. Failure to prepare an amended information. The public defender next contends that because the district attorney did not issue an amended information charging all the crimes in all four counties, the consent given by the district attorneys of Waukesha, Chippewa, and Eau Claire counties is invalid. Again, we must point out that this assertion was not raised prior to trial and is deemed waived pursuant to sec. 971.31(2), Stats. Also this asserted error did not prejudice the defendant and, as provided by sec. 971.26, does not make the proceedings here invalid.
Sec. 971.09(2), Stats., does require that prior to seeking the approval and consent of the other district attorneys, the district attorney of the county in which the pleas will be accepted shall prepare an information charging all of the consolidated charges. The failure to follow this procedure would not, however, invalidate the consolidation if there was an actual consent by the district attorneys involved and a waiver by the defendant. These elements are present in this case.
The public defender also contends that because the consents signed by the district attorneys referred to the predecessor statute, sec. 956.01(13), Stats.1967, the consents are not valid. Inasmuch as the new statute is simply a renumbering of sec. 956.01(13) in the 1967 statutes, this argument falls of its own weight.
C. Validity of pleas to Eau Claire county charges. The public defender argues that despite the fact that these pleas were accepted in the circuit court for Milwaukee county, charges are still pending against defendant in Eau Claire county for these same charges. The suggestion is made that this deprived the Milwaukee county court of jurisdiction over the Eau Claire offenses. Sec. 971.09(5), Stats., provides that when there is a consolidation of charges, the charges should be dismissed in the county where the crime was committed. The failure to follow the statute does not, however, deprive the court where the plea is accepted of jurisdiction. Quite obviously, once the plea is accepted the defendant cannot be made to stand trial on the same charges in the county of the offense. Such duplicity would constitute double jeopardy, forbidden by both the state and federal constitutions.
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