State v. Kanieski

• Decision Date: 12 April 1966
• Citation: 141 N.W.2d 196,30 Wis.2d 573
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Edward Frank KANIESKI, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 196

141 N.W.2d 196

30 Wis.2d 573

STATE of Wisconsin, Plaintiff-Respondent, v. Edward Frank KANIESKI, Defendant-Appellant.

Supreme Court of Wisconsin.

April 12, 1966.

Rehearing Denied June 23, 1966.

Leon S. Schmidt, Wisconsin Rapids, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, for respondent.

HALLOWS, Justice.

The writ of coram nobis is a common-law remedy of very narrow scope in this state and was given statutory recognition and preserved by sec. 958.07, Stats., in 1949. In the recent case of Fritz v. State (1964), 25 Wis.2d 91, on page 95, 130 N.W.2d 279, on page 280, we stated: 'The type of error that may be reached by coram nobis was comprehensively considered in Houston v. State (7 Wis.2d 348, 96 N.W.2d 343) wherein it was stated:

'An error to constitute a ground for the granting of the writ of coram nobis must not only be unknown to the court but would have prevented the judgment of the court. * * * Unless it clearly appears that an error of fact existed before judgment and but for such error the judgment would not have been entered, the writ of coram nobis should not be granted."

Under common law and under sec. 958.07, Stats., the granting of the writ of coram nobis by the trial court is discretionary and the statute does not provide what grounds are necessary for its issuance. From our previous decisions, it is clear the limited scope of the writ encompasses only errors of fact outside the record which are unknown to the trial court and which if known would have prevented the entry of judgment. Fairchild, Post Conviction Rights and Remedies, 1965 Wis. Law Review 52. The original and the present purpose of the writ of coram nobis is to secure relief from the trial court, not this court, for such errors and to correct the record when no other remedy exists. In re Ernst (1923), 179 Wis. 646, 192 N.W. 65, 30 A.L.R. 681. Consequently, the writ does not lie to correct errors of law and of fact appearing on the record since such errors are traditionally corrected by appeals and writs of error. Ernst v. State (1923), 181 Wis. 155, 193 N.W. 978; Houston v. State (1959), 7 Wis.2d 348, 96 N.W.2d 343. Jurisdictional errors have traditionally been reviewable by habeas corpus when an appeal or writ of error was not available and recently we have enlarged the scope and purpose of that writ to review violations of substantial constitutional rights both as a post-conviction and a preconviction remedy. State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W.2d 753; Wolke v. Fleming (1964), 24 Wis.2d 606, 129 N.W.2d 841; Babbitt v. State (1964), 23 Wis.2d 446, 127 N.W.2d 405; State ex rel. Burnett v. Burke (1964), 22 Wis.2d 486, 126 N.W.2d 91; State ex rel. Casper v. Burke (1959), 7 Wis.2d 673, 97 N.W.2d 703. Of course, the motion for a new trial has been available as well as an appeal or writ of error for violations of constitutional rights appearing on the record.

No issue is raised on this appeal that the application for the writ of coram nobis was made 12 years after conviction. On that problem, see Anno., Delay as affecting right to coram nobis attacking criminal conviction, 62 A.L.R.2d 432. The issue then on this appeal is whether or not the trial court abused its discretion in denying the writ on the ground no error of fact outside the record was shown.

As the first error, the defendant alleges this court denied him a review or an appeal from his conviction but the record does not show any appeal was ever taken to this court. Assuming, however, the defendant made an application for appointment of counsel to prosecute an appeal or a writ of error under sec. 957.26(3) Stats., such application could have been denied under our 'pre-Douglas' practice because this court was not satisfied the review was sought in good faith and upon reasonable grounds and the denial would not appear in this record. If such is the defendant's contention, the denial was not an error or a mistake of fact unknowingly existing at the time of the entry of judgment below but would constitute a post-conviction violation of the constitutional right to counsel on appeal under Douglas v. People of State of Cal. (1963), 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. Such alleged error is not within the scope of the writ of coram nobis in the trial court as it is not a mistake of fact which if known to the court would have prevented the rendition of the judgment.

Likewise, the alleged denial of an appeal by the trial court is without merit. In the affidavit of the trial counsel in support of the petition, it is stated no appeal or writ of error was taken to this court because he was informed by the...