State v. White

Decision Date11 May 1993
Docket NumberNo. 92-3013-CR,92-3013-CR
Citation501 N.W.2d 463,177 Wis.2d 121
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Gerald F. WHITE, Defendant-Appellant.
CourtWisconsin Court of Appeals

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Gerald White appeals a judgment convicting him of operating while intoxicated and operating after revocation, in violation of secs. 346.63(1) and 343.44(1), Stats., as an habitual traffic offender. 1 He contends that the trial court erred by concluding that his two prior Minnesota convictions for OWI constitute prior convictions that, together with his Wisconsin prior OWI conviction, justify penalty enhancement under sec. 346.65(2)(d). He argues that because the Minnesota OWI statute does not conform to sec. 346.63(1), the trial court was precluded from counting the Minnesota convictions as prior convictions for sentencing purposes in Wisconsin. Because we conclude that the Minnesota OWI statute meets the prerequisite in sec. 343.307, the trial court properly considered White's two Minnesota OWI convictions for purposes of determining the proper sentence. The judgment is affirmed.

The facts are undisputed. In May 1992, a jury convicted White of operating while intoxicated. During 1990, White was convicted three times of OWI, once in Wisconsin and twice in Minnesota. At the sentencing hearing, White objected to the court's consideration of his Minnesota convictions for penalty enhancement purposes. The trial court concluded that, under sec. 343.307, Stats., the Minnesota OWI statute is in conformity with sec. 346.63(1), Stats., and that White's Minnesota convictions could be considered for penalty enhancement purposes. The court then sentenced White for OWI, fourth offense.

The issue whether the Minnesota OWI convictions may be considered for sentencing purposes involves the application of statutes to undisputed facts, a question of law that we review independently of the trial court's determinations. See State v. Pham, 137 Wis.2d 31, 33-34, 403 N.W.2d 35, 36 (1987).

Wisconsin Stat.Ann. sec. 343.307(1) (West.Supp.1992), 2 entitled "Prior convictions to be counted," explains the prerequisites for considering prior convictions for sentencing purposes:

For purposes of counting the number of ... convictions under s. ... 346.65(2) ... convictions for violations under s. 346.63(1) [and] ... convictions under the law of another jurisdiction that prohibits ... use of a motor vehicle while intoxicated ... as those or substantially similar terms are used in that jurisdiction's laws ... shall be counted and given the effect specified under s. ... 346.65(2).... (Emphasis added

Minnesota Stat. sec. 169.121(1)(a) provides, "It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state ... when the person is under the influence of alcohol[.]" Minnesota's OWI statute therefore prohibits the use of a motor vehicle while intoxicated within the meaning of sec. 343.307, Stats. We conclude that White's Minnesota OWI convictions count as prior convictions under sec. 346.65(2), Stats., because the Minnesota OWI statute meets the prerequisites of sec. 343.307. Therefore, the trial court properly sentenced White for OWI, fourth offense, under sec. 346.65(2)(d).

White contends that his Minnesota OWI convictions cannot be counted in Wisconsin, citing State v. Mattson, 140 Wis.2d 24, 28-29, 409 N.W.2d 138, 140-41 (Ct.App.1987), where we held that Minnesota's OWI statute is not in conformity with Wisconsin's OWI statute, as conformity is defined in sec. 343.307, Stats. When Mattson was decided, sec. 343.307 (1987-88), defined conformity as follows: "If the same elements of the offense must be proved under a local ordinance or state statute of another state as under s. 346.63(1)(a) ... the local ordinance or state statute of the other state shall be considered to be in conformity with s. 346.63(1)(a) ... for purposes of [s.] ... 346.65(2)...." Under that statute, OWI convictions in other states were counted for penalty enhancement purposes only if the state's OWI law required the same elements to be proven as Wisconsin's OWI statute. See Mattson, 140 Wis.2d at 28, 409 N.W.2d at 140.

However, sec. 343.307, Stats., has been amended since this court's decision in Mattson. Section 343.307(1), Stats. (1991), no longer mandates that, to be in conformity with Wisconsin's OWI statute, other state statutes must require the same elements of the offense to be proved as Wisconsin's OWI statute. The current statute only requires other state statutes to prohibit the use of a motor vehicle while intoxicated.

White contends that, despite the amendments to sec. 343.307,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT