OWI – Appellate Procedure: Finality of Order, State’s Appeal: Collateral Attack on Prior OWI Conviction

State v. Gary J. Knapp, 2007 WI App 273

For Knapp: Cory C. Chirafisi

Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:

¶2 A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel. State v. Hahn, 2000 WI 118, ¶¶28-29, 238 Wis. 2d 889, 618 N.W.2d 528. An order granting such a collateral attack motion is interlocutory in nature so long as the underlying criminal proceeding is ongoing.…

¶7 Because the collateral attack on Knapp’s prior OWI conviction would not affect the State’s ability to attain a conviction here, where the applicable prohibited alcohol concentration would remain the same under either a second or third offense, we conclude that the State has no appeal as of right under Wis. Stat. § 974.05(1)(d). We further conclude that we lack jurisdiction over the appeal under Wis. Stat. § 808.03(1) and Wis. Stat. Rule 809.10(4) because the order appealed from is not final. The proper mechanism to seek immediate review in these circumstances is by leave to appeal under Wis. Stat. Rule 809.50. [2] Accordingly, we hereby dismiss the appeal for lack of jurisdiction.

The court simultaneously published an opinion casually noting that successful attack on an alleged OWI prior, if on a different ground, could be appealed by the State as a matter of right from the judgment of conviction. State v. Daniel J. Machgan, 2007 WI App 263, ¶5. Presumably, then (and assuming that result is correct, which could be a stretch), Knapp’s prosecutor could just wait until after conviction and then appeal the collateral-attack order. Sweet! Note further, though, that although the court dismissed the appeal-of-right, it is separately considering whether to grant leave to appeal (Case No. 2007AP002697 – CRLV), and has ordered briefing on “whether double jeopardy would bar the State from appealing the issue as of right following sentence.”