State v. Peterson

• Decision Date: 01 December 1981
• Docket Number: No. 80-1892,80-1892
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Rodney E. PETERSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 784

312 N.W.2d 784

104 Wis.2d 616

STATE of Wisconsin, Plaintiff-Respondent, v. Rodney E. PETERSON, Defendant-Appellant-Petitioner.

No. 80-1892.

Supreme Court of Wisconsin.

Argued Nov. 3, 1981.

Decided Dec. 1, 1981.

Bruce A. Pagel, Madison (argued), for defendant-appellant-petitioner; Bruce A. Pagel and Haukom & Ritchie, Madison, on brief.

Jeffrey M. Gabrysiak, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

ABRAHAMSON, Justice.

This is a review of a decision of the court of appeals affirming the judgment of the circuit court for Dane county, Angela B. Bartell, circuit judge. ¹ The issue posed is the propriety of the circuit court's sua sponte amendment of the pleadings to conform to the evidence presented. After the presentation of evidence the circuit court, upon its own motion, amended the complaint to charge violation of a traffic statute different from that originally charged and then found the defendant guilty of the amended charge. We conclude that while the circuit court was correct in holding that it had the power to amend the complaint on its own motion after the presentation of the evidence, the circuit court erred in not granting the parties an opportunity to present additional evidence on the complaint as amended. Accordingly, we reverse the decision of the court of appeals and remand the case to the circuit court for a new trial.

The facts on which the challenge to the judgment arises are as follows: The state's complaint originally charged the defendant with violating sec. 346.89(1), Stats. 1977, entitled Inattentive Driving. ² At the time of the incident, a violation of sec. 346.89(1) was punishable by a forfeiture of not less than twenty dollars ($20.00) nor more than four hundred dollars ($400.00) and three "points." Sec. 346.95(2), Stats. 1977; sec. MVD 11.03(13), Wis.Adm.Code (1977).

The arresting officer, a state patrolman, testified that he was driving behind the defendant in the left lane of the northbound portion of a four-lane highway and saw the defendant's vehicle drive several feet into the right lane for a short distance. The patrolman also testified that the defendant interfered with traffic in the right lane. The defendant denied that he was inattentive to the operation of his vehicle and explained that he had bent over to pick up a pair of glasses that had fallen to the floor of his car, that his car may have veered to the right slightly but that the car never crossed into the right lane, and that his eyes never left the roadway. The defendant also testified that he did not see any traffic in the right lane with which he interfered. The passenger in defendant's car corroborated the defendant's testimony.

After closing arguments by both sides, the circuit court concluded that the defendant's vehicle "did deviate from its lane, and it did so in a manner when it could not be done with safety to other vehicles approaching from the rear" and found that the state had proven "by evidence that is clear, satisfactory and convincing that a violation of sec. 346.13(1) of the statutes was committed." The circuit court then, sua sponte, amended the complaint to conform to its findings, namely to allege a violation of sec. 346.13(1), Stats. 1977, entitled Deviating From Lane of Traffic. ³ The circuit court then ordered a judgment of conviction for the offense of deviating from the lane of traffic and imposed the maximum forfeiture of $40.00 plus costs. At that time the statutorily prescribed penalty for deviating from the lane of traffic, the offense of which the defendant was found guilty, was punishable by a forfeiture of not less than twenty dollars ($20.00) nor more than forty dollars ($40.00) for the first offense and not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00) for the second or subsequent conviction within a year. Sec. 346.17(1), Stats. 1977. The number of points assessed for deviating from lane of traffic was four. Sec. MVD 11.03(16)(C), Wis.Adm.Code (1977). Thus the statutorily prescribed monetary forfeiture for the offense as amended was less than for the offense originally charged, but the number of points for the offense as amended was greater than the number of points for the offense originally charged. ⁴

The defendant's attorney objected to the circuit court's amendment of the charge stating that the amendment was not proper because the amended charge was not an offense included in the offense charged and because more points were assessed for violation of the amended charge than for violation of the statute originally charged. The circuit court concluded that it had the power to amend the complaint, stating:

"This is a civil matter, not a criminal matter. It is my view that the Court does have the power to do what it just did, and it did it without regard to the point system, in that this Court has neither control of the assignment of points nor control over the assignment of those on the record of any particular driver. This is an administrative act done through administrative rules and not subject to this Court's jurisdiction, and I do order a judgment of conviction for that offense as I found it to be."

Two issues are raised in this review: First, whether the civil or criminal statutes govern amendments to the pleadings in cases charging violations of state traffic offenses which prescribe a forfeiture; ⁵ and second, whether the amendment in this case was appropriate under the applicable statutes.

On examination of the state traffic statutes, we conclude that the amendment of pleadings in traffic cases involving violation of a state statute prescribing a forfeiture are governed by the civil statutes.

That the legislature intended that violations of state traffic laws involving forfeitures be treated as civil offenses is clear from the legislative history of chapter 346, Stats. 1977. In adopting the Uniform Traffic Procedure Act in 1971, the legislature amended many penalty provisions of ch. 346 to provide that any person found guilty of violating the traffic statutes would be punished by forfeiture of a sum of money (a civil penalty) rather than by fine or imprisonment or both (criminal penalties). ⁶ The 1971 legislature amended the state traffic penalty provisions in this manner because it was dissatisfied with the pre-1971 scheme by which violation of many state traffic statutes constituted a crime while violation of municipal traffic ordinances (which conformed to the state traffic statutes) constituted a civil offense. ⁷ Prior to 1971, whether the person arrested for a traffic violation was prosecuted for a criminal offense or was proceeded against in a civil action to recover a forfeiture depended on whether he was charged under the state law or under the local ordinance, which in turn depended, to a large extent, on the fortuitous circumstances of whether the person was arrested by a state traffic officer or by a local traffic enforcement officer. The 1971 amendments were designed to remedy this inequity by the creation of a uniform system of civil forfeiture and civil proceedings for most traffic violations whether the violation be of state traffic statutes or of local traffic ordinances. The legislative history of the 1971 amendments thus clearly demonstrates that the legislature intended to establish a system of "basically civil" uniform traffic procedures supplemented by certain "criminal protections" for the great majority of violations in the state motor vehicle code and for violations of local traffic ordinances. ⁸

Furthermore, we read the state traffic statutes to provide that the civil rules of procedure apply to amendment of pleadings in trials of forfeiture actions. Sec. 345.20, Stats. 1977, prescribes the procedure to be followed in a trial of ch. 346 forfeiture cases. ⁹ Sec. 345.20(2) provides inter alia that where no specific procedure is provided in secs. 345.21 to 345.53 in the trial of forfeiture actions for the violation of traffic regulations (which term is defined as including a state traffic law punishable by forfeiture and local traffic ordinance) the trial in circuit court shall be governed by ch. 299, Stats. 1977. Ch. 299 was renumbered ch. 799, see ch. 32, Laws of 1979. We find nothing in secs. 345.21 to 345.53 relating to the amendment of pleadings. Following the instructions the legislature has set forth in sec. 345.20(2), we turn to ch. 299, Stats. 1977. Sec. 299.04(1), Stats. 1977, states that except as otherwise provided in ch. 299, the general rules of practice and procedure in chs. 750 to 758 and 801-847 apply. We find nothing in ch. 299 relating to amendment of pleadings, and so, again following the instructions of the legislature, we turn to ch. 802 and specifically, sec. 802.09, Stats. 1977, which expressly refers to amended pleadings.

Thus if we follow the instructions which the legislature has expressly set forth in sec. 345.20(2) and sec. 799.04(1), Stats. 1979, we must conclude that sec. 802.09, Stats. 1977, is applicable to amendments in civil forfeiture cases involving violations of ch. 346, Stats. 1977.

The defendant concedes that forfeiture proceedings are essentially civil actions and that tracking the statutes leads to sec. 802.09 as the statute applicable to amendment of pleadings in a state traffic forfeiture case. The defendant argues, however, that this court has frequently recognized that forfeiture actions are of a hybrid nature, i. e. part civil, part criminal, and the defendant urges us to hold that the criminal statutes, not the civil statutes, govern amendments to pleadings. We reject defendant's contention and conclude, as we did in previous cases involving forfeiture actions for violation of county and municipal ordinances, that while certain procedures of criminal law have been adopted by the legislature in the prosecution of forfeitures, criminal pleading, practice and procedure should be...