State v. Kasuboski, 77-342-CR

• Decision Date: 06 June 1978
• Docket Number: No. 77-342-CR,77-342-CR
• Citation: 83 Wis.2d 909,266 N.W.2d 433
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Charles KASUBOSKI and Mary Ann Kasuboski, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 433

266 N.W.2d 433

83 Wis.2d 909

STATE of Wisconsin, Plaintiff-Respondent, v. Charles KASUBOSKI and Mary Ann Kasuboski, Defendants-Appellants.

No. 77-342-CR.

Supreme Court of Wisconsin.

June 6, 1978.

Charles and Mary Ann Kasuboski, pro se.

Bronson C. La Follette, Atty. Gen., Wm. L. Gansner, Asst. Atty. Gen., and Leo W. Mack, Dist. Atty. of Winnebago County, for respondent.

PER CURIAM.

The state has moved to dismiss the appeal from a circuit court affirmance of a county court's finding of guilt in a misdemeanor case, after a jury trial and verdict of guilty. Defendants were charged with violation of the compulsory school attendance law, sec. 118.15(1)(a), Stats. After the jury returned its verdict, County Judge Thomas S. Williams pronounced defendants guilty on December 7, 1976, and informed them of their appeal rights. He ordered a pre-sentence investigation and scheduled sentencing for January 3, 1977. On December 15, 1976, defendants filed a notice of appeal. The record was sent to the circuit court for Winnebago county, and the case was assigned to Circuit Judge Edmund P. Arpin. Judge Arpin rendered a written decision which was entered of record on July 15, 1977. This decision states that the judgments of the trial court are affirmed and the case is remanded to the county court for sentencing. On July 22, 1977, defendants served and filed a notice of appeal to this court. We deny the state's motion to dismiss this latest appeal.

The state advances two arguments in support of its motion to dismiss. The first is that this court has no jurisdiction, because an appealable decree of the circuit court for Winnebago county has not been entered. A written decision has the effect of an order or judgment if the trial court contemplates that no additional formal document will be entered with respect to the matter covered in the decision. If the decision has the effect of an appealable order or judgment, it is appealable itself upon entry. Barneveld State Bank v. Petersen, 68 Wis.2d 26, 227 N.W.2d 690 (1975). Judge Arpin's decision in this case was intended to have the effect of a decree of affirmance. As the adjudication of the circuit court in a misdemeanor case, it is appealable to the supreme court. Sec. 974.01(1), Stats.

The state's second argument is that the circuit court for Winnebago county never acquired jurisdiction of the appeal from the county court, because there was no judgment of the county court in writing, and therefore, no judgment was ever entered. The state relies on sec. 817.11(4), Stats., providing that the supreme court obtains jurisdiction of the subject matter of an action upon entry of an appealable order or judgment.

Sec. 817.11(4), Stats., is applicable to criminal as well as civil cases. State v. Van Duyse, 66 Wis.2d 286, 224 N.W.2d 603 (1975). However, sec. 817.11(4) is not applicable to an appeal governed by a statute which prescribes an event other than entry as commencing the time for appeal. In de Montigny v. de Montigny, 70 Wis.2d 131, 233 N.W.2d 463 (1975), the appeal was from a written decision directing entry of an amended divorce judgment with respect to custody. Under sec. 247.37(4), Stats. the time for appeal from the judgment began to run on the date when the judgment was granted. The notice of appeal was served and filed before the amended judgment was entered of record. This court held that the granting of the judgment, which was accomplished by the memorandum decision, was the appealable event, inasmuch as it made the time for appeal commence.

The de Montigny case illustrates the operation of a specific statute, sec. 247.37(4), Stats., as an exception to the general...