Summary
In Harms v. State, 36 Wis.2d 282, 285, 153 N.W.2d 78, 80 (1967), we stated: "The habitual criminality statute increases the penalty for a particular misdemeanor or felony involved, but in no way changes the nature of the crime."
Summary of this case from State v. McAllisterOpinion
September 8, 1967. —
October 3, 1967.
ERROR to review an order of the county court of Ozaukee county: WARREN A. GRADY, Judge. Writ dismissed.
For the plaintiff in error there were briefs and oral argument by Thomas T. George of Madison.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, William A. Platz, assistant attorney general, and Walter J. Swietlik, district attorney of Ozaukee county.
On March 1, 1964, the plaintiff in error, hereinafter referred to as defendant, was arrested without a warrant for the misdemeanor of disorderly conduct (sec. 947.01 (1), Stats.). On March 2, 1964, he was found guilty, upon his general plea of guilty, and the trial court ordered a presentence investigation.
After receipt of the presentence report, the trial court on March 18, 1964, took judicial notice of its records, which disclosed three prior unreversed misdemeanor convictions within the preceding five years. Pursuant to the provisions of sec. 939.62, Stats. (increased penalty for habitual criminality), the defendant was sentenced to an indeterminate term of not more than two years in the state prison at Waupun. The record does not disclose that the defendant was, at any time during the proceeding, advised of his right to counsel or that he was informed of the possibility of an increased penalty under sec. 939.62, until the actual sentencing.
On January 13, 1965, defendant, without assistance of counsel, filed a petition with the trial court which correctly considered it to be a motion to withdraw his plea of guilty and for a new trial and a motion to set aside the judgment and vacate the sentence. The trial court appointed counsel to represent the defendant and a hearing on the motions was held on March 17, 1965. The following day the defendant was paroled from the state prison. After the hearing, briefs were filed and, on August 25, 1965, the trial court entered an order denying the motion for the withdrawal of the plea and the granting of a new trial, and further ordered that the judgment and sentence theretofore entered be vacated and that the defendant be returned to court for sentencing.
On October 22, 1965, a writ of error was issued by this court and, on November 1, 1965, the defendant appeared in Ozaukee county court, without counsel as he requested, for the purpose of resentencing, whereupon the defendant was sentenced to one year in the county jail upon the finding of guilty made March 2, 1964. The court ordered that the defendant be given credit for his previous incarceration and the defendant was discharged the same day.
The defendant raises several issues. One is, that for purposes of appeal, a crime, which is clearly defined by statute as a misdemeanor, somehow changes its status when the provisions of the repeater statute are invoked by the trial court at the time of sentencing.
In Pruitt v. State (1962), 16 Wis.2d 169, 172, 114 N.W.2d 148, this court considered the nature of misdemeanors and felonies under sec. 939.60, Stats., and concluded that the distinction is on the basis of punishability for the crime and not necessarily on the basis of where the actual confinement is served.
". . . The definition distinguishes felonies from misdemeanors on the basis of punishability, but does not necessarily control or determine the place where the actual confinement is to be served. A felony carries the potential of imprisonment in prison. However, one convicted of a felony who is sentenced to less than one year may be confined in the county jail without changing the nature of the crime to that of a misdemeanor.
"Likewise, one may serve a sentence for a misdemeanor in a prison without changing the nature of the crime from a misdemeanor to a felony. . . ."
It is also urged that a crime, although clearly defined by statute as a misdemeanor, is, for the purposes of applying statutory proceedings relating to appeal, converted or somehow changed to a felony as a consequence of invoking the provisions of the recidivist statutes in sentencing.
The habitual criminality statute increases the penalty for a particular misdemeanor or felony involved, but in no way changes the nature of the crime.
The general rule is well stated in 24B C.J.S., Criminal Law, p. 437, sec. 1958:
"The enactment of an habitual criminal statute does not change the rules of evidence, or increase the malignity of the crime, or take the presumption of innocence away from an accused; nor does the statute convert a mere misdemeanor into a felony."
Furthermore, the rules, applicable to review in criminal prosecutions generally, apply in a prosecution of one accused as an habitual criminal, such as the rules relating to the form of remedy, jurisdiction, and right to appeal, and scope and extent of review. 24B C.J.S., Criminal Law, p. 528, sec. 1972.
A misdemeanor remains a misdemeanor even though the provisions of the repeater statute are invoked at the time of sentencing.
This case comes before this court as a result of the issuance of a writ of error. In effect, this is a direct appeal from the judgment of a county court in a misdemeanor criminal case.
Therefore, being an appeal, by writ of error, it is governed by the provisions of sec. 958.075, Stats., which provides in part:
"Misdemeanor appeals from county court. (1) Appeals in misdemeanor cases are to the circuit court for the. . . ."
Appeals from judgments of county court have recently been considered by this court in two cases. Milwaukee County Caldwell (1966), 31 Wis.2d 286, 143 N.W.2d 41, concerned a direct appeal to the supreme court from a conviction in county court for a violation of a traffic ordinance. In State ex rel. Murphy v. Voss (1967), 34 Wis.2d 501, 149 N.W.2d 595, the matter of appellate procedures under sec. 958.075 (1), Stats., was one of the issues considered. It was there determined that one of the reasons for the enactment of sec. 958.075, which requires that appeals on misdemeanor cases be from county court to circuit court, was to provide for the economic and orderly administration of justice.
In Caldwell, supra, it was held that appeals from county court for a violation of a traffic ordinance were subject to the provisions of sec. 66.12 (2), Stats., which provides in part as follows:
"Appeals in actions to recover forfeitures and penalties imposed by an ordinance . . . may be taken . . . to the circuit court."
The provisions of sec. 958.075 (1), Stats., are comparable to the statutory language passed upon in Caldwell, supra, wherein it was held (p. 292), "Where the procedure for appeal to circuit court is clearly provided, it is exclusive."
Therefore, it is now held this appeal should have been taken to the circuit court and not directly to the supreme court. For this reason, this appeal must be dismissed.
Inasmuch as our conclusion on the question of jurisdiction is dispositive of this appeal, it is unnecessary to consider the other issues presented.
By the Court. — Writ dismissed without costs.