State v. Bagnall, S
| Decision Date | 27 November 1973 |
| Docket Number | No. S,S |
| Citation | 61 Wis.2d 297,212 N.W.2d 122 |
| Parties | STATE of Wisconsin, Appellant, v. Ronald Milton BAGNALL, Respondent. tate 150. |
| Court | Wisconsin Supreme Court |
Robert W. Warren, Atty. Gen., James H. McDermott, Asst. Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Frank J. Schiro, Asst. Dist. Atty., Milwaukee, for appellant.
Robert E. Sutton, Samson, Friebert, Sutton & Finerty, Milwaukee, for respondent.
Several issues are raised by this appeal:
1. Is an order granting the withdrawal of a guilty plea an appealable order?
2. Was the order of the trial court valid?
3. Was the trial court correct in concluding that the misnomer in the information vitiated the plea of guilty?
4. If the trial court was incorrect as to the consequences of the misnomer, was it correct in concluding that the defendant was apprised of the nature of the crime with which he was charged?
5. Is the sentence in this case contrary to law?
Appealability.
The state initially contends that the respondent cannot challenge the jurisdiction of the supreme court because he has waived all objections under sec. 269.51(1), Stats., 1 by accepting the notice of appeal and appellant's brief before making his motion to dismiss. This statute has been construed to apply to technical defects only. The statute does not mean that jurisdiction which the court does not otherwise have can be conferred by waiver, but the statute applies only to such matters as are in their nature appealable. 2
The basic issue is whether the granting of a motion to withdraw a guilty plea is in its nature a final order appealable by the state under sec. 974.05(1)(a), Stats. 3 Jeopardy is waived by the entry of a motion to withdraw a guilty plea 4 and the order is certainly adverse to the state. The only debatable element is whether such an order has the requisite finality.
While it is generally true that to be final an order must dispose of the whole matter in litigation, it is also true that an order is appealable where even though it does not dispose of the entire subject matter in litigation it does terminate a particular proceeding or action. 5 The order here terminates the guilty plea proceeding which is separate enough from the trial which may result to warrant being held a final order and therefore appealable under sec. 974.05(1)(a), Stats.
Validity of the Order.
The state argues that the order of the trial court granting the motion for withdrawal of guilty plea is null and void, having been entered more than 120 days after the defendant's conviction. Sec. 971.08(2), Stats., reads:
'The court shall not permit the withdrawal of a plea of guilty or no contest later than 120 days after conviction.'
This was a new statute, created by the Laws of 1969, ch. 255, sec. 63. Previously the subject of the withdrawal of pleas had been governed by case law. In Pulaski v. State 6 this court said that such a motion is directed to the discretion of the court in the interest of justice which the court had the inherent power to hear without statutory authorization. In Pulaski, the court decided that a motion to withdraw a plea was timely made if served and filed within one year from the finding of guilty and specifically rejected the idea that the hearing of the motion and the order granting the motion also must be made within the one-year period.
'. . . One convicted upon a plea of guilty ought not be denied relief in a proper case because a trial court for valid reasons of pressure of work or otherwise cannot hear and decide the motion within a time limit set in reference to the diligence of the petitioner.' 7
The new statute which became effective on July 1, 1970, contained a comment which indicated that subsection (2) reduced from one year to 120 days the time for withdrawing a guilty plea and directed attention to Pulaski v. State, supra. Therefore the legislature was aware of the Pulaski holding and did not indicate that subsection (2) was designed to change the holding that it is sufficient that the motion be filed within the specified time limit. The comment indicates the statute only reduced the time limit from one year to 120 days.
This interpretation of sec. 971.08(2), Stats., is consistent with the wording of sec. 974.02(1), which was recreated by the same session law as the statute in question. The relevant wording of sec. 974.02(1), concerning a motion for a new trial, is as follows:
Here in a statute created at the same time as sec. 971.08, Stats., the legislature clearly indicated the procedure (as to motions for a new trial) that the state contends is provided in sec. 971.08. If the legislature had intended that a guilty plea withdrawal motion must be heard and decided within 120 days after conviction it would have utilized similarly clear and express language.
Correctness of Vacating Plea for Misnomer of Victim.
The trial court called to the attention of defense counsel and the district attorney that the victim of the attempted murder had been identified in the complaint as Jack Schmidt, in the information as Jack Smith and in the testimony at the guilty plea proceeding as Jack Schmidt. The name on the information was incorrect. The name on the complaint was correct. After deliberation, the trial court concluded that this variance was material and that it was fatal to the requirement of acceptance of guilty pleas that the conduct which the defendant admits constitutes the offense charged. The trial court concluded that under the circumstances the plea worked a manifest injustice, basing its decision to this effect on several old Wisconsin cases and upon an excerpt from American Jurisprudence, which reads as follows:
'An indictment must state the name of the victim of an offense where that is an essential element of the offense charged, and a failure to state it, or a material variance between statement and proof, is fatal, or at least prejudicial, but an immaterial variance is not. . . .' 8
However, sec. 129 of 41 Am.Jur.2d goes on to indicate that the common-law rule which required that the name of the person against whom the offense was directed be stated with exactitude has been relaxed in most jurisdictions and that statutes have been enacted in varying terms designed to validate indictments or informations which contain mistakes in the identification of the victim.
The narrow but real issue is whether a variance, such as the one present here, vitiates the guilty plea in this case. The issue is settled by sec. 971.26, Stats., which provides:
'No indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not prejudice the defendant.'
Although the trial court concluded that sec. 971.26, Stats., did not save this guilty plea proceeding because of its unexplained statement that the variance was prejudicial, we hold that the statute requires a showing of actual prejudice, and that where, as here, there may be a material variance it cannot be held to be automatically prejudicial.
Here, the respondent actually saw the officer and heard him testify and stated that his testimony was correct. There is no indication that at any time the defendant was confused as to the identity of the person he was charged with attempting to murder. There could be no showing of prejudice here.
This court has held that failure of an information to charge a crime known to law is a jurisdictional defect and fatal to the conviction. 9 However, if a crime is charged but there is a defect in the charge, sec. 971.26, Stats., comes into operation. A difference in the date of the crime between the complaint and the information (the information containing the incorrect date) has been held to be a matter of form and nonprejudical under this statute. 10 In State ex rel. Wenzlaff v. Burke 11 this court was faced with a challenge to the sufficiency of an information charging attempted rape. The information charged the defendant with assaulting a female and did not name any particular victim. The court agreed that an information must contain circumstances necessary to an exact description of the offense as defined by the statute creating it, but that a defect which does not go to the substance of the offense does not vitiate the information.
12
The court concluded that the defect in Wenzlaff was one of form only. If failure to name the victim is a nonjurisdictional defect of form only, certainly a mistake in the naming of the correct victim is also one of form only and if not prejudicial to the defendant such a defect does not invalidate the information or any proceedings based thereon by virtue of sec. 971.26, Stats.
Propriety of the Guilty Plea Proceeding.
The respondent seeks this court's review of the trial court's decision that he was properly apprised of the nature of the charges against him and that there was a factual basis for the plea. Respondent correctly contends that if a ruling of a trial court is in fact correct it does not matter what ground has been assigned by the trial court for the ruling. 13 In its reply brief the appellant-state argues that the defendant-respondent should not be heard on this appeal with respect to matters neither of...
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