Rohl v. State

• Decision Date: 06 April 1979
• Docket Number: No. 78-121-CR,78-121-CR
• Parties: Marvin ROHL, a/k/a Marvin Rosinsky, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Court of Appeals

Page 731

279 N.W.2d 731

90 Wis.2d 18

Marvin ROHL, a/k/a Marvin Rosinsky, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 78-121-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 22, 1979.

Opinion Released April 6, 1979.

Opinion Filed April 6, 1979.

Howard B. Eisenberg, State Public Defender, Ronald L. Brandt, Deputy State Public Defender, and Ron A. Kaminski, Manitowoc. A supplemental brief was submitted by Stephen M. Glynn of Shellow & Shellow, Milwaukee, for plaintiff in error.

Bronson C. LaFollette, Atty. Gen., and Kirbie Knutson, Asst. Atty. Gen., for defendant in error.

Before VOSS, P. J., and BROWN and BODE, JJ.

DECISION

VOSS, Presiding Judge.

The petitioner, Marvin Rohl, has filed a petition with this court requesting that he be released from custody and placed on bail pending a new trial. As grounds for his relief, he claims that he is being unlawfully held under a judgment of conviction which this court held in Rohl v. State, 90 Wis.2d. 18, 279 N.W.2d 722 (1979), was obtained in violation of his constitutional rights to a fair trial and due process under the fourteenth amendment. He, therefore, claims he is entitled to be placed on bail pending a new trial. He has requested that bail be set in the sum of ten thousand ($10,000) dollars with permission to post ten (10%) percent cash.

In Rohl v. State, supra, this court did hold that the defendant's conviction was obtained in violation of his constitutional rights. We ordered the judgment vacated and a new trial. When a judgment is vacated, the defendant is in the same position that he was prior to trial. State v. Pohlhammer, 78 Wis.2d 516, 254 N.W.2d 478, 82 Wis.2d 1, 260 N.W.2d 678 (1978). He is, therefore, entitled to pretrial bail pursuant to sec. 969.01, Stats. Ordinarily, bail pending a new trial would be set by the trial court. However, the trial court has no jurisdiction to act until it receives the remittitur in this case. State v. Neutz, 73 Wis.2d 520, 243 N.W.2d 506 (1976). The judgment and opinion in this case is not transmitted to the trial court for thirty-one days after the decision of this court. Sec. 809.26, Stats. Until the remittitur is sent to the trial court, the trial court has no final decision upon which it could determine whether the defendant is entitled to bail. While the State conceded at oral argument that the trial court has no jurisdiction to act until it receives the remittitur, it argued that thirty-one days was not an unreasonable time for the defendant to wait in prison until the trial court regains jurisdiction. The State claims that this time period was intended to permit them to petition for review and that in the meantime the legislature deemed the thirty-one days to be a reasonable time to hold the defendant in custody until either a petition for review is filed or the remittitur is sent back to the trial court at which time the defendant could move the trial court for bail pending a new trial. We do not feel that even one day is a reasonable amount of time to hold a defendant in prison unlawfully. The defendant, in this case, has been in prison for seven years. His conviction has been held constitutionally infirm. To accept the proposition that the defendant must simply sit in prison under an invalid conviction for at least thirty days is unconscionable.

In addition to the fact that the trial court has no jurisdiction in this case until it receives the remittitur, even if the remittitur had been received by the trial court, counsel for both parties informed this court at oral argument that there is no trial judge at the present time to hear a motion for bail. Under sec. 808.07(2)(a) 3., Stats., both the trial court and the appellate courts have the authority to make any order appropriate to preserve the effectiveness of a judgment subsequently to be entered. While ordinarily these motions should be made in the trial court, they may be made in the appellate court if it is impractical to seek relief in the trial court. Sec. 809.12, Stats. The trial judge who decided the post-conviction motion claimed that he had no jurisdiction to grant bail. The Chief Judge of Manitowoc County, Judge Deehr, was the prosecutor in the case at trial, and all other judges have recused themselves. While a new judge could be assigned to hear the motion, this again would take time. Meanwhile, the defendant remains in prison. Under these circumstances, we feel that we have the jurisdiction to grant the defendant relief. Until the remittitur is sent back to the trial court, or until a petition for review has been filed in the supreme court, this court retains jurisdiction of the case. See, State v. Neutz, 73 Wis.2d at 523, 243 N.W.2d at 508. This court has the power and authority to enforce its judgments and determinations and to exercise its jurisdiction. Sec. 752.37, Stats. This is the case particularly where there is no other court with jurisdiction to enforce our judgments. The petition for release on bail pending a new trial is a request to this court to enforce our judgment that the defendant's conviction was unconstitutionally obtained and that he is entitled to a new trial. Being entitled to a new trial, he is entitled to bail pending a new trial and new conviction. Sec. 969.01(1), Stats. This court has the authority to issue all writs necessary in aid of its jurisdiction. Sec. 752.01(3), Stats. Therefore, we feel we have the jurisdiction and authority to grant the defendant's request for bail pending a new trial.

The State has argued that the defendant's petition is not a petition for bail pending a new trial but rather a petition for bail pending appeal which must be brought in the trial court pursuant to sec. 809.31, Stats. State v. Whitty, 86 Wis.2d 380, 389, 272 N.W.2d 842, 846 (1978). In State v. Whitty, the defendant had been convicted in the circuit court and had filed an appeal from that conviction with this court. He sought bail pending the decision by this court on his appeal. The supreme court held that where an appeal was pending in either the court of appeals or the supreme court, the motion for bail pending appeal must be made first in the trial court. In this case, however, there is no appeal pending. This court has issued its decision on the appeal in Rohl v. State, supra, which decision is a final determination. No petition for review has been filed with the supreme court. Furthermore, the State does not have an appeal to the supreme court as of right. Secs. 808.10 and 809.62, Stats. ¹ Therefore, there is no appeal pending, and the motion for bail is not a motion for bail pending appeal. It is a motion for bail pending a new trial.

Lastly, even assuming we do not have the authority to grant bail pending a new trial under secs. 752.01, 752.37 and 969.01(1), Stats., we feel we have the authority to grant the defendant's relief pursuant to sec. 809.51, Stats. We also note that if this court has no jurisdiction to grant the defendant's requested relief based on the petition filed in this case, his remedy would be recognizable as a writ of habeas corpus, which this court does have the jurisdiction to issue. Sec. 292.03, Stats. While the petition the defendant filed with this court was not a writ of habeas corpus, we could treat it as such and grant the defendant's requested relief. State ex rel. Furlong v. Waukesha County Court, 47 Wis.2d 515, 177 N.W.2d 333 (1970). Because we felt that we did have the authority to grant the defendant's requested relief, however, we did not treat his petition as a writ of habeas corpus. Such writs are available only when all available remedies have been exhausted. ²

In view of the fact that the defendant is being held under a judgment of conviction which was obtained in violation of his constitutional rights, and there being no trial court with jurisdiction to set bail, this court, after hearing arguments from both parties, ³ orders the defendant, Marvin Rohl, released from custody on ten thousand ($10,000) dollars bail with permission to post ten (10%) percent of the amount of bail in cash with the Manitowoc County Clerk of Circuit Court. We feel this amount is reasonable after considering the following factors: (1) the length of time the defendant has been incarcerated (seven years); (2) the defendant's financial ability to meet bail; (3) the nature and strength of the State's evidence against the defendant, and (4) the seriousness of the crimes for which the defendant can be retried. Release on bail will be on the following conditions:

(1) The defendant shall not leave the State of Wisconsin without permission of this court or the trial court;

(2) The Manitowoc County Clerk of Circuit Court shall hold the bail funds until further order of this court;

(3) The State shall have ninety (90) days from the date of this decision to commence a new trial;

(4) If during the ninety (90) days the State decides not to retry the defendant, it shall inform this court, the trial court and the Manitowoc County Clerk of Circuit Court at which time, upon petition to this court, the defendant shall be released from bail and the funds returned to the persons posting the bail;

(5) If after the ninety (90) day period the State has not commenced a new trial, upon petition to this court, the defendant shall be released from bail, and the funds shall be returned to the persons posting the bail;

(6) If the State files a petition for review of this court's decision in Rohl v. State, supra, within the time period allowed for review, the ninety (90) day period shall be stayed. The defendant, however, shall remain on bail pending a decision by the supreme court on the merits of the appeal or unless the supreme court directs otherwise. If the supreme court denies the petition for review, the State then has ninety (90) days from the date of denial of the petition to review to commence a new trial, and the defendant shall remain on bail during this ninety (90)...