State v. Banks
| Decision Date | 01 December 1981 |
| Docket Number | No. 80-1662-CR,80-1662-CR |
| Citation | 313 N.W.2d 67,105 Wis.2d 32 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Randall E. BANKS, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
C. William Foust, Asst. Dist. Atty. for Dane County, for plaintiff-appellant-petitioner; James E. Doyle, Jr., Dist. Atty., on brief.
Ruth S. Downs, Asst. State Public Defender, for defendant-respondent.
This is a review of a decision of the court of appeals, 308 N.W.2d 421, affirming an order for a default judgment entered in the circuit court for Dane county, Hon. ANGELA B. BARTELL, presiding. The defendant, Randall E. Banks, was convicted of drunken driving (OMVWI) and the court on the first occasion imposed a civil forfeiture authorized by sec. 346.65(2)(a)(1), Stats. (OMVWI-first offense). Banks was arrested and charged with drunken driving on two separate occasions during a three- month period from October through December, 1979. Subsequently, Banks was tried and convicted for the second drunken driving offense and another civil forfeiture penalty was entered on his record, pursuant to sec. 346.65(2)(a)(1), by Dane County Judicial Court Commissioner, George Northrup. At the time Commissioner Northrup accepted Banks' plea to the second drunken driving charge, he was unaware of Banks' OMVWI conviction of January 10, 1980 (October 15, 1979 offense). Upon the commissioner's entry of the second civil forfeiture penalty, the division of motor vehicles advised Northrup that the defendant had been convicted of drunken driving some two weeks earlier and, thus, a court was obligated to impose the criminal penalties for any subsequent drunken driving conviction within a five-year period. Based upon this information, Commissioner Northrup vacated the second drunken driving conviction on February 27, 1980, treating it as a nullity and referred the case to the district attorney for a criminal prosecution.
The district attorney then issued a new warrant and criminal complaint charging Banks with for OMVWI-second offense. The defendant challenges the issuance of the criminal arrest warrant and complaint. On March 26, 1981, Banks was arrested and taken into custody on the criminal complaint and arrest warrant for the December 21, 1979 OMVWI charge (second-offense). At the initial appearance before the commissioner later that day, a jury trial was scheduled and the case was transferred to the circuit court for trial. On the date of jury selection, July 14, 1980, Dane County Circuit Court Judge Angela B. Bartell, sua sponte, concluded that she was Memorandum Decision of the trial court, dated August 8, 1980.
Counsel advised the court that the defendant would not contest this second OMVWI charge if the proceedings and penalties were only civil in nature. The state objected to the trial court's ruling that the court was without authority to impose a criminal penalty and the state maintained that this second OMVWI charge within a five-year period proceeding was more properly characterized as criminal in nature. The court adjourned the matter until July 16, 1980, for further arguments and took the matter under advisement until the memorandum decision and entry of a civil forfeiture default judgment. In that decision, the court construed sec. 346.65(2)(a) as a general repeater statute 1 and found that since the defendant had not been convicted of the first offense-OMVWI as of the date of the commission of his second offense he was not subject to the criminal repeater statute (sec. 346.65(2)(a)2). The court, without citing authority, held that the criminal complaint on file in the case gave the court jurisdiction to enter a civil drunken driving (OMVWI) forfeiture conviction for the second (OMVWI) offense (December 21, 1979).
The state appealed from the trial court's entry of Banks' second civil forfeiture for drunken driving within a five-year period contending that the penalty section provides that the second and all subsequent convictions within a five-year period are by statute criminal in nature. The court of appeals affirmed the trial court's judgment, holding that sec. 346.65(2), Stats., must be construed like general repeater statutes and, therefore, the penalty enhancing provisions were "inapplicable to offenses committed prior to conviction for the first offense." Because of the appellate court's determination of this issue, it did not discuss the other issues raised by the parties.
1. Did the institution of the criminal action after the court commissioner vacated the second OMVWI civil conviction violate Banks' constitutional protection against double jeopardy?
2. Is a defendant who is arrested and convicted of drunken driving two or more times within a given five-year period subject to the criminal penalties of sec. 346.65(2)(a)2, Stats., where the second or subsequent arrest takes place before the date of conviction on the first offense?
Double Jeopardy
Banks argues that the criminal action brought for the second offense of drunken driving violated his constitutional protection against double jeopardy, as he had earlier been charged and convicted civilly on the same fact situation. Sec. 346.65, entitled "Penalty for violating sections 346.62 to 346.64" requires that criminal penalties be imposed upon a second or subsequent conviction for OMVWI within a given five-year period. The language of the statute clearly demonstrates the legislature's intent that all the penalties for repeated offenses under sec. 346.65(2)(a)1, Stats., be mandatory rather than discretionary in the use of the word shall. The pertinent part of the statute reads as follows:
Our holding that the legislature's use of the word "shall" in the penalty provisions of sec. 346.65(2)(a), Stats., makes the penalties mandatory is consistent with our decision in Mollet v. Department of Transportation, 67 Wis.2d 574, 227 N.W.2d 663 (1975) in which we held that the legislature's use of the word "shall" in sec. 343.30(1q), Stats., required a revocation of license and prohibited a trial court from substituting traffic school attendance as a penalty under the statute. In that decision we stated:
Thus, the legislature's use of the word "shall" indicates that criminal proceedings and penalties are required for a second offense-OMVWI charge within a given five-year period.
The Uniform Traffic Citation and Complaint filed with the commissioner in the original action must be considered a nullity, however, as it failed to confer personal jurisdiction on the court to render a criminal penalty for the citation form fails to satisfy the requirements of probable cause.
"... The uniform traffic citation and complaint is adequate to confer personal jurisdiction in cases where the object is to collect a forfeiture but it is not adequate, and we conclude that it was not intended to apply when a crime is charged...." State v. White, 97 Wis.2d 193, 201, 295 N.W.2d 346 (1980).
Likewise, we hold that pursuant to sec. 757.69, Stats., entitled "Powers and duties of court commissioners", the court commissioner was without jurisdiction to hear or enter judgment in a criminal proceeding and since the second violation of sec. 346.63(1) is a criminal proceeding his entry of judgment is a nullity because the commissioner was without subject matter jurisdiction. Sec. 967.07 expressly provides that in handling criminal matters "(a) court commissioner may exercise powers or perform duties specified for a judge if such action is permitted under sec. 757.69, Stats." Jurisdiction to preside over a criminal trial, however, is not among the actions which a court commissioner is permitted to perform, pursuant to the provisions of sec. 757.69, and, thus, a court commissioner lacks subject matter jurisdiction over a criminal trial.
Our holding that the court commissioner was without jurisdiction to preside over a criminal trial because no statutory provision grants him that authority is consistent with prior decisions of this court holding:
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