State v. Smith
| Decision Date | 30 June 1972 |
| Docket Number | No. S,S |
| Citation | 198 N.W.2d 630,55 Wis.2d 304 |
| Parties | STATE of Wisconsin, Respondent, v. James J. SMITH, Appellant. tate 63. |
| Court | Wisconsin Supreme Court |
The incident giving rise to this criminal appeal occurred on October 15, 1969, when the appellant, James J. Smith, aged eighteen, hereinafter defendant, was stopped by two Washington county sheriff's deputies along U.S. Highway 41 in Washington county on suspicion of failing to report damage to a highway fixture. While the officers were questioning defendant, he pulled a pistol and ordered the officers to take off their gun belts and raise their hands. The officers surrendered their gun belts to defendant who then handcuffed the officers and told them to walk into an adjacent field. Defendant, with an accomplice, then fled in the police car.
As a result of these events, defendant was charged with failure to report an accident contrary to sec. 346.69, Stats.; unlawfully pointing a firearm contrary to sec. 941.20(1)(c); armed robbery contrary to sec. 943.32; and operating a vehicle without owner's consent contrary to sec. 943.23. The defendant entered guilty pleas to these charges. These charges were subsequently consolidated with three more and pleas of guilty were then entered to all seven charges. After ascertaining that the pleas were voluntary and knowing and after obtaining the factual basis for the charges, the court accepted the pleas and on January 12, 1970, entered a judgment of conviction. Defendant was sentenced to an indeterminate term of not more than sixteen years in the Wisconsin state prisons.
Subsequently, but within one year from the date of conviction, the defendant filed a postconviction motion under sec. 974.06, Stats. A hearing was held on the motion on September 24, 1970. The court denied the motion on March 31, 1971. Defendant appeals from the order denying the sec. 974.06 motion.
William G. Bunk, Simester, Schowalter & Bunk, West Bend, for appellant.
Robert W. Warren, Atty. Gen., Richard J. Boyd, Asst. Atty. Gen., Madison, for respondent.
Before reaching the issues on the merits of this appeal, it should be noted that the incorrect postconviction procedure was utilized in this case. The procedural problem in this case is that although the sec. 974.06 motion was made before the expiration of the one-year appeal period (applicable to this case by virtue of sec. 958.13, Stats. 1967), the motion was used to raise objections not reaching the constitutional dimensions contemplated under sec. 974.06, 1 but stating objections that should have been covered by a motion for a new trial. In this respect we very recently stated in Peterson v. State 2 as follows:
Here the proper procedure would have been a motion for a new trial or to withdraw the guilty plea and appeal.
Because the postconviction procedures here were completed well before our opinion in Peterson, we will consider the issues raised on the merits of this appeal.
Three issues are raised on this appeal:
1. Was the conviction for pointing a firearm invalid because it is a lesser included offense of armed robbery?
2. Was defendant subjected to double jeopardy because of his convictions for both pointing a firearm and armed robbery?
3. Did the trial court abuse its discretion in denying defendant's motion to withdraw his pleas of guilty?
The principal question on this appeal is whether the crime of unlawfully pointing a firearm contrary to sec. 941.20(1)(c), Stats., is a lesser included offense of armed robbery contrary to sec. 943.32. An included crime is defined in sec. 939.66, which provides, in relevant part:
'Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
'(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged; . . ..'
The precise question here is whether the crime of pointing a firearm requires the proof of any fact in addition to those required to be proved in the armed robbery prosecution.
Sec. 941.20(1)(c), Stats., makes a crime 'Intentionally point(ing) a firearm at or toward another.' The armed robbery statute provides, in relevant part:
'(1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means may be imprisoned not more than 10 years:
'(a) By using force against the person of the owner with intent thereby to overcome his physical resistance or physical power of resistance to the taking or carrying away of the property; or
'(b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.
'(2) Whoever violates sub. (1) while armed with a dangerous weapon may be imprisoned not more than 30 years.'
These statutes disclose that pointing the weapon is not a fact necessary to prove armed robbery, while it is an element of the less serious crime. In fact, an armed robbery conviction does not require a visible weapon at all. 3 All that is required is the threat of using a weapon. Thus under the test of sec. 939.66, Stats., pointing a firearm is not an included offense within the armed robbery statute.
Relying on Laev v. State 4 and State v. Melvin, 5 defendant attempts to argue that even if the statutory elements of pointing a firearm are not included within the elements of armed robbery, on the facts of this case the first offense is included in the latter. Quite clearly these cases do not support that proposition. In Laev this court found that one fraud statute was the lesser included of another fraud statute, while in Melvin the court declared the reckless use of a weapon under sec. 941.20(1)(a) and (c), Stats., to be lesser included offenses within attempted first-degree murder. Defendant claims that on the facts of this case it would have been impossible for the defendant to have committed the greater offense without committing the lesser. While that is true, this is not the test for finding a lesser included offense. The correct test is to examine the required elements of the crime. If defendant's test were correct armed robbery would become a lesser included offense of homicide when a death was involved in an armed robbery and pointing a firearm would be a lesser included offense of rape should the assailant choose to use such a weapon. In short, the test for a lesser included offense is not the peculiar nature of a single defendant's crime, rather it is whether the lesser offense is statutorily within the greater. 6
Defendant asserts that Holesome v. State 7 states a different rule. A review of Holesome demonstrates, however, that the rule is that it is 'utterly impossible' to commit the greater crime without committing the lesser crime. 8 That is the rule consistently applied by this court. Armed robbery does not require the pointing of a gun and thus the latter is not a lesser included offense. The fact that in the present case the defendant did actually point the gun is irrelevant. The requirement is those facts which are required to be proven, not those facts which...
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State v. Verhasselt
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Brown v. State
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Braun v. Powell
...defendant has exhausted his direct remedies which consist of a motion for a new trial and appeal. Id. at 845; see also State v. Smith, 198 N.W.2d 630, 631-32 (Wis. 1972) (quoting Peterson). However, this exhaustion requirement did not apply to constitutional claims. In Loop, the Supreme Cou......