holding that to allow a defendant to attack errors in the admission of evidence or faulty jury instructions long after his or her conviction through the use of the postconviction relief statute would render statutes which limit the time for appeal meaninglessSummary of this case from State v. La Bine
No. State 50.
Argued November 5, 1971. —
Decided November 30, 1971.
APPEAL from an order of the circuit court for Milwaukee county: HUGH R. O'CONNELL, Circuit Judge. Dismissed.
For the appellant there was a brief by James C. Schalow and Schalow, Powers Dugan, all of Milwaukee, and oral argument by James C. Schalow.
For the respondent the cause was argued by Richard J. Boyd, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
This appeal is taken from an order denying defendant's motion for postconviction relief under sec. 974.06, Stats. Defendant Billy Joe Langston was convicted of the charge of armed robbery on September 25, 1968, and was sentenced to an indeterminate term of not more than twenty years' imprisonment in the Wisconsin state prison. The motion for postconviction relief was filed with the circuit court on December 7, 1970, and denied on December 22, 1970.
The motion was based upon an alleged denial of defendant's constitutional right to a full jury trial. Defendant asserted that a jury instruction, in which the court stated:
"The testimony in this case shows that a bottle was used as a weapon, . . ."
took an essential fact from the jury and thereby denied him the right to a full jury verdict on all the issues pertaining to his guilt. The pertinent portions of the instructions read as follows:
"The information in this case charges that on the 27th day of June, A. D., 1968, in the county of Milwaukee, state of Wisconsin, the defendant, Billy Joe Langston, with intent to steal by using force against the person of one William G. Shea with intent thereby to overcome his physical resistance or physical power of resistance to the taking and carrying away of the property of said William G. Shea, did feloniously rob and take from the person of said William G. Shea $180 in U.S. currency, the property of William Shea, said offense occurring in the alley behind North 6th Street in the city of Milwaukee, in said county, while being then and there armed with a dangerous weapon, to wit, a bottle wrapped in a bag; contrary to Section 943.32, sub (1) (a) and sub (2), of the statutes and against the peace and dignity of the state of Wisconsin.
"To this charge in the information, the defendant has entered a plea of not guilty, which means a denial of every material allegation in the information.
"We now come to the consideration of armed robbery, as charged in the information, under Section 943.32, sub (1) (a) and sub (2), of the Wisconsin Criminal Code, which provides, in part, as follows: `Whoever with intent to steal takes property from the person or presence of the owner by either of the following means: Intent (a) by using force against the person of the owner with intent thereby to overcome his physical resistance or physical power of resistance to the taking or carrying away of the property or; (2) Whoever violates sub (1) while armed with a dangerous weapon may be . . .' punished.
"The testimony in this case shows that a bottle was used as a weapon.
". . .
"Section 939.22, sub (10), of the Wisconsin Statutes defines dangerous weapon as any device or instrumentality which in the manner it is used or intended to be used is calculated or likely to produce death or great bodily harm. Great bodily harm, according to Section 939.22, sub (14), of the Wisconsin Statutes means bodily injury which creates a high probability of death or which causes serious permanent disfigurement or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.
"If you find from the testimony that a bottle was, in fact, used as a weapon in the commission of this offense and the bottle so used constituted a device or an instrumentality which in the manner in which it was used was calculated or likely to produce death or great bodily harm as heretofore defined, then you may find that the bottle so used was a dangerous weapon. If you find that this was not the case, then you should consider that the bottle was not a dangerous weapon within the definition given."
Defendant did not object to these instructions, nor did he move for a new trial. No appeal from the judgment has ever been taken.
Two issues are presented in this appeal:
(1) May an allegedly improper jury instruction be collaterally attacked under sec. 974.06, Stats.; and
(2) Is the defendant entitled to a new trial because of the allegedly erroneous instruction?
Use of sec. 974.06, Stats.
The judicial council, commenting on the enactment of the postconviction relief statute, stated:
"This represents the first Wisconsin attempt at a comprehensive post-conviction statute which will afford an all encompassing remedy for defendants challenging their convictions. It is taken directly from Title 28, U.S.C. s. 2255. The section is designed to supplant habeas corpus and other special writs." Wis. Annot. (5th ed. 1970), p. 2165, sec. 974.06.
The pertinent portion of the statute itself reads:
"Post-conviction procedure. (1) A prisoner in custody under sentence of a court claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."
This court has never been required to interpret this statute or to decide whether there are any limitations on the questions which might be raised by collateral attack. However, the federal courts, in construing 28 USCA 2255, which is substantially identical to sec. 974.06, Stats., have held that such questions as sufficiency of the evidence, propriety of jury instructions, and admission of certain evidence cannot be raised in postconviction proceedings. In Carrillo v. United States (10th Cir. 1964), 332 F.2d 202, 203, the following was stated:
"A motion under sec. 2255, like a petition for a writ of habeas corpus, may not be used as a substitute for appeal, and may be used to collaterally attack a judgment of conviction only where the constitutional rights of the accused have been violated. The sufficiency of the evidence to support a verdict of guilty cannot be raised by such a motion. Trial errors, such as erroneous admission of evidence and the giving of improper instructions to the jury, must be raised on direct appeal and do not afford a basis for collateral attack."
Similar rulings were handed down in Gaitan v. United States (10th Cir. 1963), 317 F.2d 494; Kristiansand v. United States (5th Cir. 1963), 319 F.2d 416; and Margoles v. United States (7th Cir. 1969), 407 F.2d 727, certiorari denied, 396 U.S. 833, 90 Sup. Ct. 89, 24 L. Ed. 2d 84.
We think that these federal decisions are sound. To hold that a defendant has the right to attack errors in the admission of evidence or faulty jury instructions long after his conviction through the use of the postconviction relief statute would render those statutes which limit the time for appeal totally meaningless. Furthermore, merely alleging, as defendant does here, that such trial errors denied him a constitutional right to a trial by jury should not alter the basic tenor of his appeal. This is merely an attempt to appeal from the judgment of conviction on the basis that the trial court erroneously instructed the jury. Since the time for taking such appeal has long expired, defendant's appeal must be dismissed.
Since the appeal is not proper under sec. 974.06, Stats. and must be dismissed, we do not reach the remaining issue.
By the Court. — The appeal from the order of December 22, 1970, is dismissed.