State v. Bouzek

• Decision Date: 02 April 1992
• Docket Number: No. 91-2076-CR,91-2076-CR
• Citation: 484 N.W.2d 362,168 Wis.2d 642
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Alan B. BOUZEK, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 362

484 N.W.2d 362

168 Wis.2d 642

STATE of Wisconsin, Plaintiff-Respondent, v. Alan B. BOUZEK, Defendant-Appellant.

No. 91-2076-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 5, 1992.

Opinion Released April 2, 1992.

Opinion Filed April 2, 1992.

For the defendant-appellant the cause was submitted on the briefs of Ellen M. Frantz, Johns & Flaherty, S.C., La Crosse.

For the plaintiff-respondent the cause was submitted on the brief of Kenneth R. Kratz, Asst. Dist. Atty., La Crosse.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

We hold in this case that a person convicted of violating a harassment injunction contrary to sec. 813.125, Stats., ¹ may not collaterally attack the validity of the underlying injunction in a subsequent criminal prosecution for its violation.

The appellant, Alan Bouzek, consented to the issuance of the original injunction prohibiting him from having contact with the petitioner, C.A. He was charged with violating the injunction and entered into a negotiated plea agreement under which he pled guilty to the offense. He received an imposed-and-stayed twenty-month sentence and was placed on probation for a period of two years, conditioned upon serving ninety days in the county jail.

After sentencing, Bouzek filed a postconviction motion in which he sought to vacate the conviction and sentence on grounds that the underlying injunction was overly broad and had been improperly issued. The trial court denied the motion and Bouzek appeals.

He raises the same arguments on appeal and, acknowledging that his guilty plea waives all but jurisdictional defects in his conviction, ² he asserts that such a defect exists here because the underlying injunction was overbroad and was issued upon inadequate findings of fact.

We do not address the merits of these arguments, however, because they constitute an impermissible collateral attack on the injunction.

In Schramek v. Bohren, 145 Wis.2d 695, 429 N.W.2d 501 (Ct.App.1988), we considered a similar challenge to a domestic abuse injunction issued under sec. 813.12, Stats. That statute authorizes the issuance of injunctions restraining acts of domestic abuse, as the term is therein defined and, like sec. 813.125, makes it a criminal (misdemeanor) offense to violate an injunction. The procedure is in all material respects the same as that found in sec. 813.125. Thus, while Schramek was a civil, not a criminal, case, its holding is equally applicable here.

The plaintiff in Schramek--who previously had been enjoined under sec. 813.12, Stats., from engaging in domestic abuse against her husband--later sued him (and others) asserting a variety of claims, including malicious prosecution and abuse of process. Because those claims (and certain others) were "based on the premise that the underlying injunction was invalid," we dismissed them as impermissible collateral attacks on the original order. Id. at 712-13, 429 N.W.2d at 508.

A collateral attack is an "attempt to avoid, evade or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing, or annulling it." ... For [plaintiff] to ... request consideration in separate proceedings of any cause of action [based on the invalidity of the domestic abuse injunction] would be sanctioning a collateral attack on the order of another [ ]judicial body. [Her] only basis for [an] attack [on the injunction would be] if she had demonstrated fraud in...