State v. Ryback, S

• Decision Date: 28 June 1974
• Docket Number: No. S,S
• Citation: 219 N.W.2d 263,64 Wis.2d 574
• Parties: STATE of Wisconsin, Respondent, v. Rick A. RYBACK, Appellant. tate 54.
• Court: Wisconsin Supreme Court

Page 263

219 N.W.2d 263

64 Wis.2d 574

STATE of Wisconsin, Respondent, v. Rick A. RYBACK, Appellant.

No. State 54.

Supreme Court of Wisconsin.

June 28, 1974.

Defendant-appellant, Rick A. Ryback, was charged with possession of a dangerous drug (marijuana), in violation of sec. 161.30(7), Stats.1969, in a complaint filed September 25, 1972. A motion to suppress evidence was filed September 27, 1972, and a hearing held thereon on October 9, 1972. At the conclusion of the hearing the motion to suppress was withdrawn and the case by stipulation was submitted to the court on the testimony adduced at the hearing on the motion. Defendant was found guilty and, pursuant to sec. 161.47(1), Stats.1971, no judgment of conviction was entered and, with the consent of the defendant, he was placed on probation for one year with the condition that, if he were not arrested for any crime involving dangerous drugs during the probationary period, the conviction would be expunged. Notice of appeal to the circuit court was filed on October 11, 1972, and the county court disposition was affirmed on November 9, 1972. Notice of appeal to this court was filed on November 16, 1972. On October 31, 1973, the state filed a motion to dismiss the appeal for lack of subject-matter jurisdiction and for lack of notice to the state of the filing of the appeal. On November 26, 1973, this court rejected the second ground but deferred decision on the first ground pending consideration of the merits.

James C. Wood, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Steven B. Wickland, Asst. Atty. Gen., Madison, for respondent.

ROBERT W. HANSEN, Justice.

While issues are raised as to sufficiency of the complaint and as to whether defendant's surrender of the marijuana to the arresting officer was voluntary, the threshold question is that of appealability of a disposition, under sec. 161.47(1), Stats., that, with the consent of a defendant, results in no judgment of conviction.

The statute involved, enacted in 1971, provides:

'161.47 Conditional discharge for possession as first offense. (1) Whenever any person who has not previously been convicted of any offense under this chapter, or of any offense under any statute of the United States or of any state relating to narcotic drugs, marijuana or stimulant, depressant or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a controlled substance under s. 161.41(3), the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under s. 161.48. There may be only one discharge and dismissal under this section with respect to any person.' (Emphasis supplied.)

The offense here charged being a misdemeanor, the 1971 statute providing for misdemeanor appeals applies, providing in material part:

'974.01 Misdemeanor appeals. (1) Appeals from the county court in misdemeanor cases are to the circuit court for the county on the record. Appeals from the circuit court in misdemeanors are to the supreme court.

'(2) Within 15 days after judgment, appeal may be taken to the circuit court by filing a notice of appeal with the clerk of the trial court and by serving notice of appeal on the opposing party or his attorney.

'. . .

'(6) On appeal, the circuit court has power similar to that of the supreme court under ch. 274 to review and to affirm, reverse or modify the judgment appealed from, and in addition it may order a new trial in whole or in part, which shall be in the circuit court.' (Emphasis supplied.)

This statutory provision for appeals from the county court to the circuit court in misdemeanor cases is limited to the appeals of 'judgments.' The circuit court power to affirm, reverse or modify is limited to 'the judgment appealed from.' A predecessor statute provided for a broader area of circuit court review. That statute, sec. 974.01(2), Stats.1969, read as follows:

'794.01 . . .

'(2) Within 15 days after judgment or entry of the order appealed from, appeal may be taken to the circuit court by filing a notice of appeal with the clerk of the trial court and by serving notice of appeal on the opposing party or his attorney. If a motion for a new trial has been made within the 15-day period, an appeal from a judgment of conviction may be taken within 15 days after entry of the order denying the motion or within 15 days after such motion is deemed overruled.' (Emphasis supplied.)

The underlined language in the predecessor statute was deleted by ch. 298, sec. 22, Laws of 1971. Where a statute is clear on its face and unmistakable as to its meaning, it is not necessary to refer to a predecessor statute and changes made to aid in the construction and application of the statute. (See: Tanck v. Clerk, Middleton Jt. School Dist. (1973), 60 Wis.2d 294, 303, 210 N.W.2d 708.) This court has held that an order denying postconviction relief in a misdemeanor case is appealable under sec. 974.01, Stats., but this is so because such order '. . . is treated as a judgment under sec. 974.06(7). . . .' (State v. Brice (1973), 61 Wis.2d 397, 400, 212 N.W.2d 596.) The Brice Case states, '. . . Judgments in misdemeanor cases are appealable to the circuit court under sec. 974.01. . . .' (Id. at page 400, 212 N.W.2d at page 597.) There is no judgment where the disposition authorized by sec. 161.47, Stats., is made in a misdemeanor case, so such disposition is not appealable to the circuit court for review. The judgment of the circuit court affirming the disposition of the misdemeanor case as made by the county court is void for want of subject-matter jurisdiction. (See: State v. Jakubowski (1973), 61 Wis.2d 220, 224, 212 N.W.2d 155.)

With the circuit court's attempted review of the county court disposition held to be a nullity, it is suggested that this court could and should consider the issues raised as if they had been brought directly to this court by appeal or otherwise. Even if the disposition could be thus directly appealed to this court, the suggestion would be rejected. In Jakubowski, this court not only held void an order of the circuit court reviewing an order of the county court in a misdemeanor case, but held as well that, '. . . an appeal from that order thus must be dismissed.' (Id. at page 224, 212 N.W.2d at page 157.) The court cited an earlier case, the Jenkins Case, holding that, in the absence of statutory authorization for appeals from county court to circuit court, with the proper route that of direct appeal to this court, '. . . appellant's failure to follow the statutory procedures for appeal is fatal in the instant action.' (...