Sass v. State

• Citation: 63 Wis.2d 92,216 N.W.2d 22
• Decision Date: 02 April 1974
• Docket Number: No. S,S
• Parties: Lawrence E. SASS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 2.
• Court: United States State Supreme Court of Wisconsin

Page 22

216 N.W.2d 22

63 Wis.2d 92

Lawrence E. SASS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 2.

Supreme Court of Wisconsin.

April 2, 1974.

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Betty R. Brown, Asst. Atty. Gen., Madison, for defendant in error.

HALLOWS, Chief Justice.

Sass asks this court to consider four questions: (1) Whether, because he was not advised of his right to appeal and did not appeal, he can raise nonconstitutional claims in a motion for postconviction relief under sec. 974.06, Stats.; (2) whether the trial court lacked jurisdiction to impose sentence because it failed to enter a judgment of conviction upon the jury's verdict; (3) whether the uncorroborated testimony of an accomplice is sufficient to support the conviction against him; and (4) whether it was error for the trial court not to sua sponte instruct the jury on the weight to be given the testimony of the accomplice?

In Peterson v. State (1972), 54 Wis.2d 370, 195 N.W.2d 837, this court stated that if a defendant is not informed by the trial court of his right to appeal, it would allow the defendant to pursue a late appeal; but it was held this rule was not to be retroactively applied in In re Applications of Maroney and Kunz (1972), 54 Wis.2d 638, 196 N.W.2d 712. In denying retroactivity to the new rule, this court pointed out that the postconviction relief afforded by sec. 974.06, Stats., covered alleged violations of the federal constitution, the constitution and laws of Wisconsin, and jurisdictional defects and excessive sentences, although there had been no direct appeal involving these issues. The court thought this relief to be adequate even though it was aware the section did not cover ordinary errors at trial. Consequently, this court did not intend to, nor does the language used in Peterson and in Maroney and Kunz, as claimed by Sass, enlarge the scope of sec. 974.06.

In this case, Sass was convicted before the effective date of Peterson. It makes no difference that the trial court did not advise him of his right to appeal--that was not the practice of the trial court or the requirement of this court. But Sass urges that we should reexamine and change the rule so that all issues may be raised by sec. 974.06, Stats. We have often said the postconviction remedy of sec. 974.06 cannot be used as a substitute for an appeal. Sass' argument would render appeals and writs of error useless and would extend the time for appeals. This was not the purpose of sec. 974.06 and we adhere to the rule that as a matter of right a defendant can raise under sec. 974.06 only those questions designated in that section.

As to the second issue, we find no jurisdictional question involved in Sass' claim that the trial court imposed a sentence without first entering a judgment of conviction on the jury's verdict. The question of the construction of sec. 972.13, Stats., was not raised in the trial court in the motion for postconviction relief. Sass has not gone back to the trial court for relief as a basis for an appeal; consequently, the question is not before this court for review. The present procedure requiring a judgment of conviction to be entered prior to sentencing is governed by sec. 972.13, Stats. The replaced procedure was discussed in Spiller v. State (1971), 49 Wis.2d 372, 182 N.W.2d 242; Kelley v. State (1972), 54 Wis.2d 475, 195 N.W.2d 457; and Wilson v. State (1973), 57 Wis.2d 508, 204 N.W.2d 508.

During the trial the state called as a witness one Kent Leathers who testified against Sass. Sass and another accomplice Danny Reutten took the stand and gave their...