State v. Harris, 82-1889-CR
| Citation | 350 N.W.2d 633,119 Wis.2d 612 |
| Decision Date | 28 June 1984 |
| Docket Number | No. 82-1889-CR,82-1889-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Denia HARRIS, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Jack E. Schairer, Asst. State Public Defender, for defendant-appellant-petitioner.
Jerome S. Schmidt, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.
This is a review of a decision of the court of appeals, dated August 23, 1983, 1 which affirmed the judgment and order of the circuit court for Kenosha county, Robert Baker, Judge, convicting the defendant of aiding and abetting attempted robbery and as a repeater in violation of secs. 939.05, 939.32, 943.32(1)(a), and 939.62(1)(b), Stats. The court of appeals held that, because the trial court did not impose a sentence for greater than the maximum allowed by law for a first offender attempted robbery, sec. 939.62 2 could not have been applied and therefore, it need not decide whether Harris was a repeater. We affirm the decision of the court of appeals as modified, because we conclude that the six month enhancement of the sentence imposed by the trial court in consideration of the repeater status was an abuse of discretion, because sec. 939.62, as a matter of law, was not applicable to a less than maximum sentence and, hence, could not be used to enhance the thirty month sentence imposed for the substantive offense of attempted robbery.
The following facts of record are pertinent to this review. On October 27, 1981, the defendant was charged with the crime of attempted robbery. An information was subsequently filed, which, in addition to the substantive charge of attempted robbery, alleged Harris was a repeater as defined in sec. 939.62(2), because she had been convicted of misdemeanors in the past. After a trial to a jury, on March 16, 1982, Harris was found guilty of attempted robbery, file number 81 CF 455.
At the hearing in the Kenosha circuit court on April 16, 1982, the defendant pleaded no contest to a charge of injury by negligent use of a weapon which occurred on January 25, 1982, file number 82 CF 31. On the same date Harris was sentenced on the charge of injury by negligent use of a weapon and the charge of attempted robbery repeater. The trial judge stated:
Subsequently the defendant filed a postconviction motion which challenged the repeater aspect of her imposed sentence on the ground that she had not been convicted of misdemeanors on "3 separate occasions," as contemplated by sec. 939.62(2), Stats., and thus was not a "repeater" as defined by that statute. In an oral decision from the bench, the trial court denied Harris' postconviction motion, which was entered by order dated October 8, 1962. The defendant appealed the judgment of conviction and the order denying postconviction motion to the court of appeals.
The court of appeals held that sec. 939.62, Stats., did not apply to the defendant because the trial court did not impose a sentence greater than the maximum allowed for a first offender attempted robbery--five years. Secs. 943.32(1)(a), 939.32, 939.50(3)(c). The court of appeals stated that, to construe the section "as applying before the maximum term is imposed deprives its language of meaning." 114 Wis.2d at 572. It was the conclusion of the court of appeals that the six months of the sentence apportioned as an enhancement for being a repeater was not an abuse of discretion. It concluded that the sentence need not be modified, because the imposed sentence of three years was within the limits set by statute. The court of appeals recognized, however, that it might be irregular to attribute a specific portion of a sentence to a particular sentencing criterion.
The defendant petitioned this court for review, contending that she was not a repeater within the meaning of sec. 939.62(2) and, even if she were, sec. 939.62(1) prohibited a less than maximum sentence from being enhanced. We accepted the petition for review on October 11, 1983.
The issue we address is when is sec. 939.62, Stats., the general repeater statute, applicable to authorize a trial court to increase the maximum term of incarceration prescribed by law for the crime of which the defendant is convicted. We conclude that sec. 939.62 is not applicable to a defendant's sentence unless the maximum sentence is imposed for the crime for which the defendant is convicted.
The general repeater statute, sec. 939.62(1), Stats., provides in relevant part as follows:
"If the actor is a repeater ... and the present conviction is for any crime for which imprisonment may be imposed ... the maximum term of imprisonment prescribed by law for that crime may be increased ...." (Emphasis supplied.)
Both parties agree that the repeater statute is not applicable to the case at bar but assert different reasons for that position. The defendant argues that she is not a repeater as defined in sec. 939.62(2), Stats., because she had not been convicted of a misdemeanor on three separate occasions. The state, on the other hand, contends that the repeater statute is not applicable because it may be applied only to enhance the maximum term of imprisonment prescribed by law. Because the defendant was sentenced to a term of incarceration for less than the maximum prescribed by statute, the state contends sec. 939.62 is not applicable.
Section 939.62(1), Stats., is unambiguous in that reasonable, well informed persons could not disagree as to its meaning or become confused. Kollasch v. Adamany, 104 Wis.2d 552, 561, 313 N.W.2d 47 (1981); Aero Auto Parts, Inc., v. Dept. of Transportation, 78 Wis.2d 235, 238, 253 N.W.2d 896 (1977). Section 939.62(1) authorizes a trial court, in its discretion, to increase the "maximum term of imprisonment prescribed by law" for the crime for which the defendant is convicted. This means that, in addition to the maximum sentence allowed by statute for the substantive offense for which the defendant is convicted, the trial court may impose an enhanced penalty. Sentencing by using the process of the repeater statute is completely discretionary on the part of the trial court after the defendant is convicted of an offense and found to be a repeater.
This court has previously stated that being a repeater is not a crime--it is a status; but such status may enhance the punishment for the crime of which the person is convicted--the substantive offense. Block v. State, 41 Wis.2d 205, 212, 163 N.W.2d 196 (1968); State v. Watkins, 40 Wis.2d 398, 162 N.W.2d 48 (1968); Hanson v. State, 48 Wis.2d 203, 208, 179 N.W.2d 909 (1970). A charge of repeater, if proved, "only renders the defendant eligible for an increase in penalty for the crime of which he is convicted." Block, 41 Wis.2d at 212, 163 N.W.2d 196; State v. McAllister, 107 Wis.2d 532, 536-37, 319 N.W.2d 865 (1982); State v. Miller, 239 Wis. 334, 1 N.W.2d 178 (1941); Watson v. State, 190 Wis. 245, 208 N.W. 897 (1926). Thus, we have previously recognized, although only by implication, that sec. 939.62 is applicable to a sentence if an increase in the penalty prescribed by law for the crime of which the defendant is convicted is determined to be warranted by the trial court. 3
The purpose of the general repeater statute "is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction." State v. Banks, 105 Wis.2d 32, 49, 313 N.W.2d 67 (1981). It is to serve as a warning to first offenders. State v. Midell, 40 Wis.2d 516, 162 N.W.2d 54 (1968). There can be no increase in punishment prescribed by law if the sentence imposed by the court does not exceed that authorized by statute; and, of course, there is no reason for an enhancement of the penalty when the sentencing judge decides to impose less than the statutory maximum for the substantive crime. A sentence imposed which is within the term authorized by law for the prescribed crime does not invoke the repeater statute. Sec. 939.62(1), Stats., is invoked when the maximum term of imprisonment prescribed by law, in the trial court's discretion, is not sufficient and needs be enhanced.
We make explicit what has previously been implicit. The repeater statute, sec. 939.62, Stats., is not applicable to the sentence of a defendant unless the trial court seeks to impose a sentence in excess of that prescribed by law for the crime for which the defendant is convicted.
If the trial court in its discretion determines that incarceration is warranted for the defendant which is greater than that prescribed by law for the substantive offense, it is incumbent,...
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