Taylor v. State

• Court: Wisconsin Supreme Court
• Writing for the Court: BEILFUSS
• Citation: Taylor v. State, 207 N.W.2d 651, 59 Wis.2d 134 (Wis. 1973)
• Decision Date: 05 June 1973
• Docket Number: No. S,S
• Parties: Sherman Lee TAYLOR, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 126.

Page 651

207 N.W.2d 651

59 Wis.2d 134

Sherman Lee TAYLOR, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 126.

Supreme Court of Wisconsin.

June 5, 1973.

Martin E. Love, Legal Aid Society of Milwaukee, Criminal-Appellate Div., Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

BEILFUSS, Justice.

Sherman Lee Taylor, plaintiff in error (hereinafter defendant), asserts that the trial court erroneously denied his motion to dismiss the charges against him because of a lack of speedy trial by its order of December 30, 1971.

The record filed in this court is so deficient and misleading that we cannot, with any assurance of the accuracy of the factual and procedural background, decide the issue raised.

The brief by defendant's attorney states that the nature of the action is to review an 'order' of the circuit court entered on December 30, 1971, which denied his motion to dismiss for lack of speedy trial. Additionally, he asserts the court on that same day convicted and sentenced defendant on three counts of burglary and one count of attempted burglary. However, the writ of error issued is not from an 'order' of the court but from a judgment of conviction of only one criminal charge entered three days earlier, on December 27th. If the defendant is appealing just the 'order' and not the judgment it is not an appealable order. Although the order affects a substantial right, it did not in affect determine the action and prevent judgment from which an appeal can be taken. Sec. 274.33(1), Stats. Further confusion appears in the record because there is no judgment of conviction nor any transcript of the proceedings of December 27th or December 30th. The copy of the clerk's docket, which is part of the record magnifies this confusion. It states the case was continued on December 27th for further proceedings and on December 30th the defendant was found guilty of the offense charged in the information, but the information charges only one count and the status of the other three counts is unknown. The problem is further aggravated by an examination of defendant's January 13, 1972 letter to the clerk of this court. In the letter defendant informed the clerk that he wanted to appeal all four of his convictions before Judge Landry, but two of the case numbers cited do not correspond to the ones listed in the brief prepared by his counsel--nor are the dates of those convictions listed. The information filed on October 7, 1968, states the charge is for burglary, Case No. G--6437. The record also indicates that defendant could possibly have been tried and convicted twice for the same offense, No. G--6437--once before Judge Steffes on December 31, 1968, and once before Judge Landry on December 30, 1971. Finally, the ultimate confusion comes when the defendant's attorney in his brief, states that the 'identity' of the defendant is confused because he was also known by several aliases and he has a younger brother who is also known as Sherman Lee Taylor, and both brothers were charged with committing the same burglary in Case No. G--6437. Thus even the docket loses its efficacy.

This court, sua sponte, has the power to raise and determine the issue of whether it has subject-matter jurisdiction. The court must have subject-matter jurisdiction in order to have the authority to hear and determine the appeal or review. Milwaukee v. Cohen (1973), 57 Wis.2d 38, 203 N.W.2d 633. In BABBITT V. STATE (1964), 23 WIS.2D 446, 450, 127 N.W.2D 405, 408,¹ the court stated, 'A writ of error 'lies after final judgment, or after an order in the nature of a final judgment, rendered in a court of law, to correct some supposed mistake...