State v. Wollmer, S
| Decision Date | 06 March 1970 |
| Docket Number | No. S,S |
| Citation | 174 N.W.2d 491,46 Wis.2d 334 |
| Parties | STATE of Wisconsin, Respondent, v. Richard WOLLMER, Appellant. t. 103. |
| Court | Wisconsin Supreme Court |
This is an appeal from a judgment entered on September 3, 1968, which sentenced the defendant to an indeterminate term of not more than four years for the crime of forgery in violation of sec. 943.38(1)(a), Stats. The defendant waived a jury trial and, after a plea of not guilty and not guilty by reason of insanity, he was found guilty by the trial court on June 28, 1968. The certificate of conviction and sentence is dated September 3, 1968. An appeal is taken from the conviction.
Lloyd A. Barbee, Milwaukee, for appellant.
Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Michael Ash, Asst. Dist. Atty. for Milwaukee County, Milwaukee, for respondent.
The state takes the position that the court is without jurisdiction to review the conviction inasmuch as the notice of appeal was dated on July 29, 1969, more than one year following the June 28, 1968, judgment roll entry showing the finding of guilty. Sec. 958.13, Stats., provides in part that a party aggrieved 'has one year, after entry of the order or judgment appealed from, to serve notice of appeal or procure the issuance of a writ of error.'
Sec. 270.70, Stats., defines the entry of a judgment as 'The filing of the judgment * * * in the office of the clerk * * *.' This court in Babbitt v. State (1964), 23 Wis.2d 446, 127 N.W.2d 405, the date shown in the judgment roll as being the date of the conviction, held where an appeal was perfected more than one year therefrom, that the appeal was insufficient to bring into question the merits of the conviction.
Similar facts are applicable here. The entry in the judgment roll of June 28, 1968, shows that the cause was submitted and that the defendant was found guilty of the offense as charged in the information. Such date is determinative of the appeal period if the conviction itself is to be attacked. We pointed out in Babbitt that, where prior to the appeal more than one year has elapsed since the entry of conviction, there can be no review of the legal questions relating to such judgment. As a consequence, the appeal dated July 29, 1969, was not timely and the jurisdiction of this court to review the conviction cannot be invoked. As the state properly points out, only the sentencing judgment, the judgment of September 3, 1968, is called...
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