Strong v. State
| Decision Date | 03 October 1967 |
| Parties | Allan Ward STRONG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Manny S. Brown, Racine, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., William A. Platz, and Betty R. Brown, Asst. Attys. Gen., Madison, Gerald E. Clickner, Racine County, Dist. Atty., Racine, for defendant in error.
Two issues are presented on this review: (1) Did the trial court have jurisdiction to hear or determine a motion for a new trial which was not made until more than two and one-half years after the finding of guilty but within one year of the sentence; (2) If the trial court had jurisdiction to hear a motion for a new trial, did the trial court abuse its discretion in denying the motion?
On the hearing of the motion, no question was raised by the state that the court was without jurisdiction. But on this review the question is raised whether a motion for a new trial can be properly made some two and one-half years after the trial and a finding of guilty. The state contends that the motion for a new trial was not brought within the time required by sec. 958.06, Stats., and that therefore the trial court was without jurisdiction to entertain the motion and concludes that, the trial court having no jurisdiction, nothing remains but to dismiss the writ of error.
There is no right to a new trial in criminal cases at common law. The statutes, however, provide such a right. The authority of the trial courts to grant motions for a new trial therefore rests entirely upon the statutes, and the power of the courts is restricted by the statutes. 24 C.J.S. Criminal Law, § 1422, p. 7, and State v. Waters (1965), 28 Wis.2d 148, 152, 135 N.W.2d 768.
Sec. 958.06(1), Stats., which governs new trials in criminal cases provides in part:
'Within one year after the trial and on motion of the defendant the court may grant a new trial for any cause for which a new trial may be granted in civil cases, but on such terms and conditions as the court directs. * * *'
The statute goes to the subject matter jurisdiction of the court over motions for new trials and subject matter jurisdiction can neither be waived nor conferred on the court. Pillsbury v. State (1966), 31 Wis.2d 87, 142 N.W.2d 187.
Sec. 270.06, Stats., defines a trial as '* * * the judicial examination of the issues between the parties, whether they be issues of law or of fact.' According to this definition the trial would be concluded when the examined issues are resolved which is accomplished by either the jury verdict or findings of fact. Under this view sentencing would or would not occur depending upon the result of the trial.
In Pulaski v. State (1964), 23 Wis.2d 138, 142, 126 N.W.2d 625, 628, this court stated:
In Berness v. State (1955), 263 Ala. 641, 83 So.2d 613, the court held that the word 'trial' when used in criminal cases means 'proceedings in open court, after pleadings are finished, down to and including rendition of the verdict.'
Defendant contends that sentencing should be included in the statutory definition of 'trial....
To continue reading
Request your trial
-
State v. Drake
...254 S.C. 501, 505, 176 S.E.2d 141, 142 (1970), cert. den., 401 U.S. 937, 91 S.Ct. 912, 28 L.Ed.2d 216 (1971); Strong v. State, 36 Wis.2d 324, 327, 152 N.W.2d 890, 892 (1967). An overview of our criminal statutes and rules discloses the concept of "trial" has not included the sentencing proc......
-
State v. Decker
...P. 272; State v. Swann, 5 N.C.App. 385, 168 S.E.2d 429. Sentencing is more closely analogous to judgment than to trial. Strong v. State, 36 Wis.2d 324, 152 N.W.2d 890. A review of the statutes of our state on criminal procedure clearly establishes that the law as set forth above is applicab......
-
Warrix v. State
...the parties, sec. 270.06, Stats., and this process commences at the time of the opening arguments to the jury, Strong v. State (1967), 36 Wis.2d 324, 327, 152 N.W.2d 890; but a waiver made part way through a jury trial is retroactive in effect to the commencement of the trial. It cannot be ......
-
State v. Meafou
...be made within two years after final judgment). Under common law there is no right to new trial in criminal cases. Strong v. State, 36 Wis.2d 324, 152 N.W.2d 890 (1967); Joseph v. State, 236 Ind. 529, 141 N.E.2d 109 (1957), cert. granted on other grounds, 355 U.S. 812, 78 S.Ct. 64, 2 L.Ed.2......