State ex rel. Barth v. Burke
Decision Date | 02 June 1964 |
Parties | STATE of Wisconsin ex rel. Clifford W. BARTH, Petitioner, v. John C. BURKE, Warden Wisconsin State Prison, Respondent. |
Court | Wisconsin Supreme Court |
Original proceeding in this court. Petition of Clifford W. Barth for a writ of habeas corpus to test the legality of his imprisonment in the state prison. The facts are stated in the opinion. Judgment and sentence of the county court vacated. Petitioner remanded to the custody of the sheriff of Outagamie county to be held by him for further proceedings according to law.
Harry P. Hoeffel, Appleton, for petitioner.
George Thompson, Atty. Gen., Wm. A. Platz, Asst. Atty. Gen., Madison, for respondent.
On April 24, 1962, Clifford W. Barth was convicted on nineteen counts of issuing worthless checks in violation of sec. 943.24, Stats., in the county court of Outagamie county, Gustave J. Keller, Judge.
Barth was first brought before the county court on December 1, 1961, and was bound over for trial after waiving preliminary examination. The district attorney requested, and obtained, a 10-day period to investigate the matter further. On December 12, 1961, Barth again appeared before the court, and the information was read to him. The following then occurred:
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The matter was continued until December 18, 1961, at which time the following took place:
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Barth entered a plea of guilty to the charges and on January 19, 1962, was sentenced on one count to the county jail for a period of one year, with Huber Law privileges. On each of the other eighteen counts sentence was withheld, and he was placed on probation for four years.
On April 24, 1962, Barth again appeared before the court after having violated the provisions of his probation and also the provisions of the Huber Law. He was asked whether he was dissatisfied with the terms of his probation, and he replied:
The trial court stated that Barth's request would be complied with, and his probation was revoked. He was sentenced to a total of five years in the state prison (five one-year terms to run consecutively). The total number of counts involved in the April 24, 1962, sentence was nineteen, whereas at the original trial sentence was withheld on only eighteen counts, Barth having been sentenced on January 19, 1962, to one year in the county jail under the Huber Law on one count. Thus the sentences imposed on April 24, 1962, appear to include one count for which Barth had previously been sentenced to the county jail.
The petitioner's major contention is that he was not represented by counsel, although faced with the possibility of a substantial prison sentence. He also raises additional arguments to the effect that: (1) The sentence is void because it included one more count than he was charged with; (2) the sentence is void because it included one count for which he had previously been sentenced to one year in the county jail; and (3) that he was not advised of his right to appeal, and was denied a transcript of the proceedings.
Although the petitioner was charged with a misdemeanor, he faced a substantial sentence on the nineteen counts with which he was charged. The trial court asked Barth several times whether he wished to retain an attorney, but the record does not reveal that he was informed that if indigent he would be entitled to have counsel appointed for him. He was also questioned as to his assets, and it was revealed that he had 'part of a lot...
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