Summary
In Babbitt v. State (1964), 23 Wis.2d 446, 450, 127 N.W.2d 405, 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 which is apparent on the face of the record.'"
Summary of this case from Taylor v. StateOpinion
March 5, 1964 —
April 13, 1964.
ERROR to review a judgment of the county court of Clark county. LOWELL D. SCHOENGARTH, Judge. Affirmed.
For the plaintiff in error there were briefs and oral argument by Frank L. Nikolay of Colby.
For the defendant in error the cause was argued by Betty R. Brown and William A. Platz, assistant attorneys general, with whom on the brief was George Thompson, attorney general.
On September 20, 1961, Byres Babbitt was brought before the magistrate in the county court of Clark county under a complaint and warrant charging him with two counts of violation of sec. 943.38(1), Stats., forgery.
At this appearance the following events transpired, as recorded in the docket:
"September 20, 1961, 4:10 p.m., case called. Defendant was advised as to right to legal counsel — declined. Defendant waived preliminary examination and entered a plea of guilty to both charges.
"The District Attorney informed the court that on August 12, 1961, defendant made out a check payable to himself in the amount of $50.00, drawn on the People's Exchange Bank of Thorp, signed his wife's name thereto as maker and then cashed the same at the O N Lumber Company at Greenwood. The check was used to purchase paint. His wife had not made out the check nor did she have an account in the People's Exchange Bank. Further, that on June 20, defendant made out a similar check and purchased food with it at Amacher's Trading Post in the city of Owen, again signing his wife's name thereto as maker.
"Defendant requested trial forthwith. Upon the statement of the District attorney of the facts of the case, it appearing to the court that there is probable cause to believe the defendant guilty as charged, of which offense the Justice Court Branch of the county court has no trial jurisdiction, and it appearing that the defendant ought to be put on trial for a crime cognizable before another court[.]
"IT IS ORDERED, that proceedings herein be stopped and that the defendant be bound over to the Circuit Court Branch of county court for Clark county for trial forthwith; that defendant be held to bond, pending trial; that he pay the costs herein.
"Whereupon the Court . . . adjudges that he pay costs taxed at $11.30.
"[Signed] Lowell D. Schoengarth, County Judge"
At 4:25 p.m. on September 20, 1961, Judge SCHOENGARTH abandoned his role as a magistrate, and assumed the role of a court of record conducting an arraignment. The following events transpired at this arraignment, as recorded in the docket:
"In court District Attorney and Undersheriff with Defendant.
"Court reads charges of forgery, contrary to 943.38 on Aug. 12, 1961, for $50.00; and on June 20, 1961, for $50.00, by use of wirers name.
"Defendant pleads guilty to both charges[.]
"D. A. makes statement of facts and findings.
"Defendant will make full restitution, however, he cannot right at this time because of income.
"D. A. recommends probation and restitution.
"Court inquires into background of defendant, finds previous conviction for embezzelment [sic] and that Defendant is heavily in debt and other bad checks. On plea, court finds Defendant guilty as charged.
"Order and sentence of the court that sentence be withheld at this time, Defendant placed on probation to St. Dept. of Public Welfare for a period of two years. To make restitution for bad checks of $100.00, plus others to be established, and pay the cost of the action of $16.30.
"[Signed] Robert W. Schiller, Clerk of Court"
The record is silent as to whether the court advised Babbitt as to his right to counsel, in any manner or form.
Babbitt pleaded guilty to both counts of the complaint and warrant. On the plea, the court found him guilty. Pursuant to the provisions of sec. 57.01(1), Stats., the court withheld sentence and placed the defendant on two years' probation under the custody of the public welfare department. Restitution of the amount of the forged checks was made a condition of probation.
" 57.01 PROBATION OF FELONS. (1) When a person is convicted of a felony (convictions under s. 52.05 excepted) and it appears to the court from his character and the circumstances of the case that he is not likely again to commit crime and that the public welfare does not require that he shall suffer the penalty of the law, the court may, by order, withhold sentence or impose sentence and stay its execution and in either case place him on probation to the department for a stated period, stating in the order the reasons therefor, and may impose as a condition of such order or of continuing it in effect that he shall make restitution or pay the costs of prosecution or do both. The period of probation may be made consecutive to a sentence of imprisonment on a different charge, whether imposed at the same time or previously. Consecutive periods of probation may be imposed. In case the conditions of probation are violated, the current probation and all subsequent consecutive probations shall be revoked."
On May 8, 1963, the public welfare department, after having made a determination that Babbitt violated the conditions of his parole, returned him to the county court of Clark county for imposition of sentence.
After a short hearing relating to the allegations of parole violations, the court imposed sentence. The judgment sentenced Babbitt to state prison for two consecutive terms of six years each for two counts of violations of sec. 943.38, Stats., in August and September, 1961. The court imposed sentence upon the findings of guilty predicated upon Babbitt's plea of guilty, made at the arraignment in September of 1961.
The writ of error seeks a review of the sentencing judgment.
The sole issue raised by this writ is:
May a judgment of sentence be reviewed under a writ of error to determine whether the court lacked jurisdiction to impose such sentence?
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 which is apparent on the face of the record."
Martin v. State (1941), 236 Wis. 571, 573, 295 N.W. 681.
It is true that a judgment of conviction is a final judgment, for the purposes of direct review by appeal or review by writ error, even though the trial court may withhold sentence and place the defendant on probation. Therefore, because more than one year has expired since entry of the judgment of conviction in September, 1961, Babbitt cannot obtain review of legal questions relating to such judgment by means of a writ of error.
State v. Scherr (1960), 9 Wis.2d 418, 101 N.W.2d 77; State v. Welkos (1961), 14 Wis.2d 186, 109 N.W.2d 889.
"958.13 FELONY APPEALS. In lieu of prosecuting a writ of error, either party may appeal to the supreme court in the manner provided in civil cases. Either party 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."
A sentencing judgment is also a final judgment for the purposes of review by writ of error or direct appeal. A final judgment or an order in the nature of a final judgment, for the purposes of review by writ of error, is a judgment or order which not only affects a substantial right of a party, but in addition, the impact of the judgment or order upon the party's rights cannot be affected by subsequent proceedings before the same tribunal. A sentencing judgment is, therefore, a final judgment for purposes of review by writ of error. However, in reviewing a sentencing judgment alone, whether by appeal or by writ of error, this court is limited to the issues of whether the court had jurisdiction to impose sentence; whether the sentence imposed is within the limits prescribed by statute; and finally, whether even if the sentence is within limits prescribed by statute, the judgment represents an abuse of discretion. "Jurisdiction" in this context refers to the power of the court over the person, and over the subject matter of the offense. Clearly, the county court of Clark county had jurisdiction in this sense to impose sentence on Babbitt.
Martin v. State, supra, at pp. 574, 575.
State v. Tuttle (1963), 21 Wis.2d 147, 124 N.W.2d 9; Pulaski v. State, ante, p. 138, 126 N.W.2d 625.
7 In re Carlson (1922), 176 Wis. 538, 186 N.W. 722. See also In re Graham (1889), 74 Wis. 450, 43 N.W. 148.
Therefore, the sentencing judgment of May, 1963, is valid. Because more than one year has run since the entry of judgment of conviction, this court may not review any claim of error surrounding that determination by means of a writ of error.
Although the writ of error must therefore be dismissed, Babbitt is not without a remedy to obtain review of his claim of constitutional error. This court has consistently held that claims of "constitutional error" may be reviewed by means of a writ of habeas corpus. Logically, it can be argued that jurisdiction over the person and jurisdiction over the subject matter include the power to "err" in the evaluation of constitutional claims. However, since the claim of constitutional error is a claim that the most basic values of the legal system have been violated, this court has held that any imprisonment resting upon such error must be terminated as swiftly as possible.
Servonitz v. State (1907), 133 Wis. 231, 113 N.W. 277; Arnold v. Schmidt (1913), 155 Wis. 55, 143 N.W. 1055; State ex rel. Currie v. McCready (1941), 238 Wis. 142, 297 N.W. 771; State ex rel. Drankovich v. Murphy (1946), 248 Wis. 433, 22 N.W.2d 540; State ex rel. Wenzlaff v. Burke (1947), 250 Wis. 525, 27 N.W.2d 475; State ex rel. Lawrence v. Burke (1948), 253 Wis. 240, 33 N.W.2d 242; State ex rel. Casper v. Burke (1959), 7 Wis.2d 673, 97 N.W.2d 703; State ex rel. Burnett v. Burke (1964), 22 Wis.2d 486, 126 N.W.2d 91.
Babbitt's claim that he was not apprised of his right to counsel in any manner or form is an allegation of constitutional error.
State ex rel. Lawrence v. Burke, supra; State ex rel. Casper v. Burke, supra; State ex rel. Burnett v. Burke, supra.
Therefore, we continue the appointment of counsel to pursue Babbitt's claim by means of a writ of habeas corpus.
At this proceeding Babbitt may offer affirmative evidence to prove that it is more probable than not that he was denied his constitutional right to representation by counsel at arraignment. By the Court. — The sentencing judgment of May 10, 1963, is affirmed. Appointment of counsel continued for the purpose of pursuing a writ of habeas corpus.
State ex rel. Casper v. Burke, supra.