State v. Waldman, S
| Decision Date | 30 January 1973 |
| Docket Number | No. S,S |
| Citation | 203 N.W.2d 691,57 Wis.2d 234 |
| Parties | STATE of Wisconsin, Respondent, v. John WALDMAN, Appellant. tate 92. |
| Court | Wisconsin Supreme Court |
Charles P. Dykman, Madison, for appellant.
Robert W. Warren, Atty. Gen., Richard J. Boyd, Asst. Atty. Gen., Madison, for respondent.
On this appeal, Waldman claims he was put in double jeopardy by being charged with the same crime twice at the same time. He bases his argument on the fact that on March 29, 1971, a criminal complaint was issued against him for entering a locked vehicle (sec. 943.11, Stats). 1 He was arraigned the same day and pleaded not guilty and the case was assigned to another branch of the county court for trial. On April 12, when the case came up, the district attorney advised the court he intended to dismiss the complaint and to issue another complaint with a repeater allegation added. The case was then continued and on April 19, 1971, the district attorney issued the second complaint, which is the subject of this action. On the same day, Waldman was arraigned on the second complaint and pleaded not guilty. The case was assigned to another branch of the court for trial. Thus at that time there were two complaints pending against Waldman for the same offense to which he had pleaded not guilty.
On June 25, 1971, Waldman moved the county court to withdraw his not guilty plea to the first complaint and pleaded guilty. The district attorney then moved to dismiss the first complaint. The motion to dismiss was granted by the court, which thereupon refused to accept Waldman's plea of guilty to the first complaint and refused to examine Waldman on the voluntariness of his guilty plea. On July 15, 1971, Waldman changed his not guilty plea to the second complaint to a plea of no contest, upon which the court found him guilty and sentenced him.
This case raises the question of when double jeopardy attaches. In State v. Schmear (1965), 28 Wis.2d 126, 135 N.W.2d 845, this court examined the various theories of double jeopardy and adopted the 'continuous proceeding' theory for cases where a conviction is reversed and a new trial had. While in Hawkins v. State (1965), 30 Wis.2d 264, 140 N.W.2d 226, the court referred to Schmear as being based on waiver because the new trial was a result of the defendant's action, that was only one of the theories discussed in Schmear. In Salters v. State (1971), 52 Wis.2d 708, 191 N.W.2d 19, this court reaffirmed the 'continuous proceeding' doctrine of Schmear. The holding of these cases, however, are not controlling because this case is not a 'continuous proceeding' case or a new trial on the same charge after conviction.
In Hawkins this court said jeopardy attached when the plea of guilty was accepted by the court. Salters relied on Hawkins for the proposition that jeopardy attached when the plea of guilty was entered. We see no conflict between these two statements because we take the view a plea of guilty is not entered until it is accepted by the court.
Waldman argues that when he changed his not guilty plea to a plea of guilty on the first complaint, the court had a duty to enter it and to proceed under sec. 971.08(1), Stats.1969, to make such inquiry as would satisfy the court that the plea should or should not be accepted before entertaining the motion of the district attorney to dismiss the charge. This is a kind of a 'Robert's Rules of Order' argument. When presented with a guilty plea, a court...
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