Opinion
No. 80-012-CR.
Argued March 3, 1981. —
Decided March 31, 1981.
APPEAL from an order of the circuit court for Milwaukee county: ROBERT W. LANDRY, Circuit Judge. Order vacated and cause remanded.
For the appellant the cause was argued by Pamela Magee-Heilprin, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
For the respondent there was a brief and oral argument by Louis B. Butler, Jr., assistant state public defender.
This is one of three cases consolidated for purposes of this appeal because they present the same issue, which is whether a trial court has the authority to vacate a Sex Crimes Act commitment for the purpose of sentencing the offender under the Criminal Code. The resolution of this issue is controlled by our decision in State v. Machner, 101 Wis.2d 79, 303 N.W.2d 633 (1981), and pursuant thereto, we declare the trial court's order vacating Higginbotham's commitment void and of no effect.
We observe that the procedure followed in this case upon the filing of a sec. 975.09 petition for discharge was substantially different from that which we outlined in State v. Hanson, 100 Wis.2d 549, 302 N.W.2d 452 (1981), and which is contained in sec. 975.09, Stats. 1979-80. Thus upon remand to the circuit court, Higginbotham is to be afforded a hearing in accordance with the current sec. 975.09, Stats.
By the Court. — The order of the circuit court is vacated and the cause is remanded to the circuit court for further proceedings in accordance with this opinion.