State v. Sveum

Citation2002 WI App 105,648 N.W.2d 496,254 Wis.2d 868
Decision Date18 April 2002
Docket NumberNo. 01-0230.,01-0230.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Michael A. SVEUM, Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael A. Sveum, pro se, and on the supplemental brief of Ian A.J. Pitz of Michael Best & Friedrich LLP of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.

Before Dykman, Roggensack and Deininger, JJ.

¶ 1. ROGGENSACK, J.

Michael Sveum was convicted of stalking, contrary to WIS. STAT. § 940.32(2m) (1995-96);2 harassment, contrary to Wis. STAT. § 947.013(1r); violating a harassment injunction issued under WIS. STAT. § 813.125(4); and criminal damage to property, contrary to WIS. STAT. § 943.01(1). Each count included a repeater allegation.3 Sveum appeals the denial of a postconviction motion in which he argued that two of his convictions violate the double jeopardy clause because violating a harassment injunction is a lesser-included offense of harassment. After reviewing the record, we requested briefing on whether violating a harassment injunction is a criminal offense that is properly subject to the general repeater statute. Because we conclude that violating a harassment injunction is a crime and that it is not a lesser-included offense of § 947.013(1r), we affirm the circuit court's order denying Sveum's motion for postconviction relief.

BACKGROUND

¶ 2. Sveum was charged and tried on a multiple-count information for actions he took against J.J., his former girlfriend, after the entry of an injunction that prohibited him from contacting her.4 The jury found him guilty on all four counts, including the two counts relevant here: (1) harassment, contrary to WIS. STAT. § 947.013(1r), and (2) violating a harassment injunction issued pursuant to WIS. STAT. § 813.125(4). The circuit court sentenced Sveum, as a repeater, to three-year consecutive prison terms on each of these convictions.

¶ 3. Sveum has filed multiple appeals and postconviction motions. In the motion that is the subject of this appeal, he contends that violating a harassment injunction is a lesser-included offense of harassment and that his conviction and sentencing for each of these offenses constitutes double jeopardy. Accordingly, he asserts that his conviction for violation of the injunction issued under WIS. STAT. § 813.125(4) should be vacated and that he should be re-sentenced on the remaining counts. The State contends that Sveum's convictions do not violate the constitutional proscriptions against double jeopardy because each offense requires proof of an element that the other does not.

¶ 4. Upon reviewing the record and issues raised by this appeal, we requested briefing to address whether violating a harassment injunction is a criminal offense subject to the repeater statute, WIS. STAT. § 939.62. Sveum contends the violation of an injunction issued pursuant to WIS. STAT. § 813.125(4) is not a criminal offense, and the State takes the opposite view.5

DISCUSSION

Standard of Review.

[1]

¶ 5. Whether the legislature intended violating a harassment injunction to be a criminal offense is a question of statutory interpretation that we decide de novo. State v. Campbell, 2002 WI App 20, ¶ 4, 250 Wis. 2d 238, 642 N.W.2d 230

.

[2, 3]

¶ 6. Multiple punishments for the same offense violate the double jeopardy protections of the Wisconsin and United States Constitutions. State v. Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1, 3 (1992). Whether an individual's right to be free from double jeopardy has been violated is also a question of law that we decide without deference to the decision of the circuit court. State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329, 332 (1998).

WIS. STAT. § 813.125(4).

[4, 5]

¶ 7. We raised the issue of whether a violation of an injunction issued under WIS. STAT. § 813.125(4) constitutes a criminal offense for two reasons. First, Sveum was sentenced as a repeater for his violation of the § 813.125(4) injunction. A defendant with the requisite criminal history may be sentenced as a repeater only if his or her "present conviction is for any crime for which imprisonment may be imposed." WIS. STAT. § 939.62(1) (emphasis added). Accordingly, if violating a harassment injunction were not a crime, Sveum's sentences as a repeater would be improper. Second, the proper characterization of his conviction may affect the double jeopardy analysis. Double jeopardy protections apply only to multiple convictions or penalties that are at least "essentially criminal" in nature. See generally State v. Thierfelder, 174 Wis. 2d 213, 225-27, 495 N.W.2d 669, 675-76 (1993)

(discussing double jeopardy in context of case involving successive prosecutions).

¶ 8. The legislature has defined "crime" to mean "conduct which is prohibited by state law and punishable by fine or imprisonment or both." WIS. STAT. § 939.12.6 Conduct punishable only by a forfeiture is not a crime. Id. WISCONSIN STAT. § 813.125(7) specifies the following penalty for violating a harassment injunction:

PENALTY. Whoever violates a temporary restraining order or injunction issued under this section shall be fined not more than $1,000 or imprisoned not more than 90 days or both.

The penalty of § 813.125(7), in combination with the definition of a crime in § 939.12, would appear to make the violation of a harassment injunction a crime. However, in State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct.App. 1993), we opined that "`crime' is defined in sec. 939.12, Stats., only for purposes of chs. 939 to 948 and 951." Id. at 796, 512 N.W.2d at 208 (emphasis added). The quoted language in West was focusing on what definition was required when the term, "crime," was used in a statute outside of chs. 939 to 948 and 951. We concluded that it is permissible to use a broader definition of "crime" if the statute using that term occurs other than in chs. 939 to 948 and 951. We did not decide whether conduct that is proscribed by statutes other than those found in chs. 939 to 948 and 951 could be criminal. However, that is the question with which we are presented here, and it was also the question addressed in State v. Mando Enters., Inc., 56 Wis. 2d 801, 203 N.W.2d 64 (1973).

¶ 9. In Mando, the supreme court applied WIS. STAT. § 939.12 to determine whether conduct proscribed by WIS. STAT. §§ 66.054(8a)(c) and (f) and 176.05(23)(c) (1967) was criminal conduct. In its examination, the court focused on the penalties the legislature had chosen for violating those statutes and relied on the explanation in § 939.12 that a crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both. Mando, 56 Wis. 2d at 804 & n.4, 203 N.W.2d at 65 & n.4. The supreme court reasoned that applying the definition of a crime found in § 939.12 is appropriate because WIS. STAT. § 939.20 specifically instructs that there are "crimes defined in other chapters of the statutes" as well as those defined in the criminal code. Mando, 56 Wis.2d at 804 n.4,203 N.W.2d at 65 n.4.

¶ 10. We conclude that Mando is dispositive of the decision we must make here because it examined conduct proscribed by a statute and decided whether that conduct was criminal based on the penalty the legislature chose to assign for the statutory violation. Id. at 807, 203 N.W.2d at 67. Here, state law prohibits violating a court-issued harassment injunction, and the prohibited conduct is punishable by a fine of not more than $1,000, or imprisonment for not more than ninety days, or both. The fact that this conduct is proscribed by a statute falling outside of chs. 939 to 951 does not preclude our use of the definition of a crime set out in WIS. STAT. § 939.12, because WIS. STAT. § 939.20 informs our decision, just as it did that of the supreme court in Mando.7

¶ 11. Additionally, our research shows that both the supreme court and the court of appeals have, without expressly deciding the issue, previously characterized the violation of an injunction issued pursuant to WIS. STAT. § 813.125(4) as a criminal offense. See Bachowski v. Salamone, 139 Wis. 2d 397, 414, 407 N.W.2d 533, 540 (1987) ("The violation of an injunction issued under sec. 813.125, Stats., is a criminal offense. Substantial fines and imprisonment could result. Section 813.125(7).");8State v. Bouzek, 168 Wis. 2d 642, 643-44, 484 N.W.2d 362, 363 (Ct.App. 1992) (holding that a defendant in a criminal prosecution for violating a § 813.125 injunction may not collaterally attack the underlying injunction; characterizing the violation as a misdemeanor and affirming defendant's conviction). In addition, we note that our decision on Sveum's direct appeal largely presumed that Sveum's conviction for violating the injunction issued under § 813.125(4) was a criminal conviction. See State v. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct.App. 1998)

.

¶ 12. The principal counterweight to the conclusion suggested by Mando, Bachowski, Bouzek and a straightforward application of WIS. STAT. § 939.12 is our decision in State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct. App. 1993). In Carpenter, we addressed the issue of whether a defendant convicted of contempt of court in a nonsummary proceeding could be sentenced as a repeater. We held that although ch. 785 of the statutes provides that contempt of court may be punished by a fine and/or imprisonment, contempt of court is not a crime under Wisconsin law. Carpenter, 179 Wis. 2d at 841-43, 508 N.W.2d at 71. ¶ 13. Sveum argues that the violation of an injunction issued pursuant to WIS. STAT. § 813.125(4) should be treated as a species of contempt and that, under Carpenter, such violations are not crimes. While Sveum's argument is not unreasonable, we conclude that ...

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