State v. Pohlhammer
| Decision Date | 03 January 1978 |
| Docket Number | No. 75-890-CR,75-890-CR |
| Citation | 260 N.W.2d 678,82 Wis.2d 1 |
| Parties | STATE of Wisconsin, Appellant, v. Frank POHLHAMMER, Respondent. |
| Court | Wisconsin Supreme Court |
MaryAnn S. Calef, Asst. Atty. Gen. (argued) for appellant; Bronson C. La Follette, Atty. Gen., on brief.
James R. Glover (argued) and Shellow & Shellow, Milwaukee, for respondent.
(on rehearing).
Briefs and oral argument on rehearing impel only the cautionary comment that the decision rendered is to be held to the facts of the case. Prior to his plea the defendant faced an information which charged three counts of arson with intent to defraud an insurer, as a party to the crime, contrary to secs. 943.02(1)(b) and 939.05, Stats. Without dismissing this information, the trial court accepted a bargained for plea of guilty to an amended information charging theft by fraud, contrary to secs. 943.02(1)(b) and 939.05, Stats., "in lieu of" proceeding on the three-count initial information. On its face the substituted amended information charged the commission of a crime barred by the six-year statute of limitations, sec. 939.74(1), Stats. The defendant appealed the trial court's denial of his motion to withdraw his plea of guilty on the ground that the statute of limitations had run on the crime of theft, and our court held that: (1) "The plea should not have been accepted;" and (2) "Neither should the amended information have been allowed." Where, as here, pursuant to a plea bargain a substituted and amended information is filed which charges not the commission of a lesser included offense but a new and different offense, prosecution of which is on its face barred by the applicable statute of limitations, trial courts are on notice that absent an express waiver of the statute of limitations' defense such an amended information is to to be accepted, a bargained plea of guilty to such information is not to be approved, and a plea of guilty to such an amended information may be withdrawn on motion of the defendant so to do.
In most cases, as we stated above, the entry of a plea of guilty ". . . simply does not raise the question" of the statute of limitations because ". . . the time of commencement of the prosecution does not appear on the face of the information." However, under the unique fact situation here, where the prosecution for theft was not commenced until the date the amended information was filed, the trial court, when asked to accept the amended information charging a new and different crime, should have refused to accept the plea.
However, this holding, while permitting the defendant to withdraw his plea of guilty under these circumstances, is not to be read to create a duty upon trial courts to inform defendants of possible statutory defenses to the charges brought or to secure waivers of those defenses as a prerequisite to acceptance of a nonretractable plea of guilty. The duty is not even required as to possible defenses on a constitutional level with few exceptions. See: Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36...
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State v. Kelty, 2006 WI 101 (Wis. 7/12/2006)
...plea and a trial even though a guilty plea necessarily established her factual guilt, Broce, 488 U.S. at 569; State v. Pohlhammer, 82 Wis. 2d 1, 4, 260 N.W.2d 678 (1978) (on motion for re-hearing) (originally reported in 78 Wis. 2d 516, 254 N.W.2d 478 (1977)), and waived her rights to a tri......
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State v. Villegas
...going to trial" (citation omitted) ) ).18 Our supreme court has cited this explanation with approval. See State v. Pohlhammer , 82 Wis. 2d 1, 3-4, 260 N.W.2d 678 (1978) (per curiam).19 Numerous decisions from other jurisdictions support this conclusion. See, e.g. , United States v. Torres ,......
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State v. Kelty
...a trial even though a guilty plea necessarily established her factual guilt, Broce, 488 U.S. at 569, 109 S.Ct. 757; State v. Pohlhammer, 82 Wis.2d 1, 4, 260 N.W.2d 678 (1978) (on motion for re-hearing) (originally reported in 78 Wis.2d 516, 254 N.W.2d 478 (1977)), and waived her rights to a......
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State v. Villegas
...standards ....Id. at 267 (emphasis added). Our supreme court has cited this explanation with approval. See State v. Pohlhammer, 82 Wis. 2d 1, 3-4, 260 N.W.2d 678 (1978) (per curiam). Under this rationale, the type of claim does not appear to have any bearing on whether the guilty plea waive......