Opinion
Case No. 95-3570.
Decision Released: June 27, 1996 Decision Filed: June 27, 1996 This opinion will not be published. See RULE 809.23(1)(b)4, STATS.
APPEAL from a judgment of the circuit court for Dane County: DANIEL R. MOESER, Judge. Reversed and cause remanded with directions.
Melvin W. Range, Inc. appeals from a judgment entered on September 28, 1995, convicting it of group axle overload contrary to § 348.15(3)(c), STATS., and imposing a forfeiture of $5,315.26. A Wisconsin State Patrol trooper determined that a semi-trailer and truck unit, driven by an agent of the defendant, was carrying a load on the highway that was 60,520 pounds overweight. The defendant contends that having the driver drive the truck from the location on the highway where it was stopped to the next weigh scale station constituted an arrest and was unlawful because there was no probable cause. The defendant also contends that § 348.15 is unconstitutional because the fines it authorizes are so great as to constitute a criminal penalty for a civil offense.
We do not decide either of these issues because we conclude that the trial court erroneously exercised its discretion in granting relief from judgment under § 806.07(1)(h), STATS. We therefore reverse the judgment entered on September 28, 1995, and remand for reinstatement of the judgment entered on February 10, 1995. We have previously held that we do not have jurisdiction to review the February 10, 1995 judgment. See State v. Melvin W. Range, Inc. , No. 95-0601, unpublished slip op. (Wis.Ct.App. May 5, 1995).
Trooper Jeffrey Zuzunaga issued a citation for group axle overload in violation of § 348.15(3)(c), STATS., on October 2, 1993. Defendant entered a plea of not guilty. Defendant filed a motion to suppress certain evidence on the ground that the arrest of the defendant's agent, Wesley Quinn, was unlawful. Defendant also filed a motion to dismiss on the ground that § 348.15 is unconstitutional. A hearing was held on the suppression motion, at which Zuzunaga testified.
After the trial court denied both motions, the parties agreed in writing to a stipulated trial. The parties agreed that the court could consider certain documents for purposes of trial and that the parties were waiving opening statements, closing arguments, cross-examination of witnesses, and presentation of evidence other than the stipulated documents. The stipulation also stated that the parties recognized that the defendant was preserving, for purposes of appeal, the legal issues presented by the two motions filed by the defendant. Pursuant to the stipulation, the court entered a judgment of conviction on June 3, 1994. The parties were not notified of the entry of the judgment. Apparently the forfeiture imposed in the judgment — $5,315.26 — was the same amount that the defendant had been required to post as a condition of bail. When the parties learned that the judgment had been entered, the appeal time had run. They stipulated to vacating and reentering the judgment of conviction so that defendant could file a timely appeal. The court entered an order on February 8, 1995, which provided that "this action be reopened and a judgment of guilt be reentered on February 10, 1995." A "new conviction" date of February 10, 1995, is listed on the Conviction Status Report.
On March 14, 1995, defendant filed an appeal from the February 10, 1995 judgment of conviction. After ordering the parties to brief the issue of whether we had jurisdiction over the appeal, we concluded:
It appears that the trial court vacated and re-entered the order solely for the purpose of extending the time to appeal. No other reason is advanced. However, a trial court cannot extend the time to appeal a final judgment by vacating and re-entering the judgment. Eau Claire County v. Employers Ins. , 146 Wis.2d 101, 111, 430 N.W.2d 579, 583 (Ct.App. 1988). We therefore lack jurisdiction and must dismiss the appeal as untimely, notwithstanding the fact that the original order was entered without notice to the parties.
We note the appellant's motion to strike the State's response, which argues for dismissal, on the grounds that the State breached an agreement to allow the appeal. Whether this appeal is timely is not an issue that can be resolved by stipulation. The State's alleged breach of its agreement is therefore irrelevant to our determination.
After remittitur, defendant filed a motion under § 806.07, STATS., for a new trial or, in the alternative, a new sentencing hearing on the grounds of surprise, misconduct of an adverse party, and any other reason justifying relief. The motion, in the form of an affidavit of defense counsel, stated that defendant had been surprised at the entry of judgment and imposition of a "severe sentence" with no notice given. It also stated that when the State argued in its brief before the court of appeals that the appeal was untimely, it breached its agreement "that the defense be permitted to pursue its appeal." Finally, the motion asserted that, "the parties never had an opportunity to be heard as to sentence, when the defense would have argued for a much lower forfeiture."
Section 806.07, STATS., provides in pertinent part:
(1) On motion and upon such terms as are just, the court may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
(a) Mistake, inadvertence, surprise, or excusable neglect;
. . . .
(c) Fraud, misrepresentation, or other misconduct of an adverse party;
. . . .
(h) Any other reasons justifying relief from the operation of the judgment.
(2) The motion shall be made within a reasonable time, and, if based on sub. (1) (a) or (c), not more than one year after the judgment was entered or the order or stipulation was made. A motion based on sub. (1) (b) shall be made within the time provided in s. 805.16. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court.
The State opposed the motion for a new trial. The trial court granted the motion under § 806.07(1)(h), STATS. The court concluded the motion was brought within a reasonable time. The court determined that defense counsel, after "that initial gap" when she did not know that the conviction had been entered, acted promptly, quickly and reasonably. The court found it was not unreasonable for defense counsel not to know that the conviction had been entered in "the unique circumstances in this case." The court indicated that such stipulated trials were rare and that it did not know if there were established procedures to deal with the situation. The court stated that it had assumed the clerk of court's office would notify the defendant in some way that it had to pay, but apparently that did not happen because the clerk of court simply took the money already posted.
The court noted that the parties had agreed to reopen and renter the judgment so that the defendant could appeal, but it also determined that the State now legitimately had a different position after reading the opinion of the court of appeals. The court concluded this was not a case of ineffective assistance of counsel or lack of diligence, but "just one of those things that happens once in a while in the thousands of cases we deal with." The court concluded that it would be harsh and unfair to deny defendant the opportunity to appeal the forfeiture "when it was clear that everything we did was to preserve the right to appeal."
At the new trial, Zuzunaga was the only witness. His testimony was substantially the same as that at the suppression motion hearing. The court adjudged the defendant guilty and asked for argument on the appropriate penalty. The prosecutor stated that the minimum fine, computed as required by the statute, was $5,315.26, the amount posted as bail, and he was not going to argue for a higher amount. Defense counsel stated that he had no argument on the penalty, but was challenging the constitutionality of the statute. The court imposed a fine of $5,315.26. Defendant now appeals this judgment of conviction entered on September 28, 1995.
A decision whether to vacate a judgment under § 806.07, STATS., including under § 806.07(1)(h), is directed to the discretion of the trial court. Eau Claire County v. Employers Ins. , 146 Wis.2d 101, 109, 430 N.W.2d 579, 582 (Ct.App. 1988). We will not reverse such a decision unless there has been an erroneous exercise of discretion. Id. The application of an erroneous legal standard is an erroneous exercise of discretion. Id. In Eau Claire County , we held that § 806.07(1)(h) did not authorize the trial court to essentially expand the time limit for filing an appeal when the time limit had passed. Id. at 111, 430 N.W.2d at 583. In Eau Claire County , the trial court had vacated two separate judgments under § 806.07(1)(h) and reinstated a substantially identical consolidated judgment for the purpose of extending the time for appeal. Id. at 108, 430 N.W.2d at 581-82. We see no basis for distinguishing Eau Claire County from this case. The trial court granted the motion to vacate the February 10, 1995 judgment and granted a new trial expressly for the purpose of preserving the defendant's right to appeal. We understand the court's concern with fairness, but we are bound by our ruling in Eau Claire County . See In re Court of Appeals , 82 Wis.2d 369, 371, 263 N.W.2d 149, 149-50 (1978).
We have considered the trial court's finding that the parties were not notified of the June 3, 1994 judgment and its finding that defense counsel was not acting unreasonably in not knowing about the entry of that judgment. However, we conclude that our ruling in ACLU v. Thompson , 155 Wis.2d 442, 455 N.W.2d 268 (Ct.App. 1990), does not permit us to take the lack of notice into account. In ACLU , the plaintiffs did not appeal the judgment in their civil rights action because they did not learn of the entry of the judgment within the time allowed for filing an appeal under § 806.07, STATS. The trial court denied the plaintiffs' motion to vacate the judgment and renter it so that they could file a timely appeal. The plaintiffs appealed from that denial. Citing Eau Claire County , we held that a trial court cannot extend the time to appeal a final judgment by vacating and reentering the judgment. ACLU , 155 Wis.2d at 445 n. 5, 455 N.W.2d at 270. Because we concluded that the judgment which had been vacated was final, we affirmed the trial court's denial of plaintiffs' motion to vacate and reenter the judgment. Id. at 449, 455 N.W.2d at 271. With respect to the lack of notice that judgment had been entered, we stated:
Why plaintiffs received no notice of the judgment is irrelevant to this appeal. As we have said, a trial court cannot vacate and reenter a judgment solely for the purpose of permitting an appeal. Eau Claire County , 146 Wis.2d at 111, 430 N.W.2d at 583.
Id. at 445 n. 5, 455 N.W.2d at 270. We are bound by our ruling in ACLU. In re Court of Appeals , 82 Wis.2d at 371, 263 N.W.2d at 149-50.
We have also considered whether the record might support the grant of a new trial on grounds other than extending the time to appeal. Specifically, we have considered the assertion in the motion for a new trial that defendant did not have the opportunity to argue for a reduced fine. However, defendant did not argue for a reduction in fine at the new trial but, in essence, conceded that the fine imposed in the judgment entered on June 3, 1994, and on February 10, 1995, was the minimum for a violation of the statute. We conclude that the record does not support any interpretation other than that the motion for a new trial was brought and granted in order to extend the time limit for appealing the judgment entered on June 3, 1994.
We therefore reverse the September 28, 1995 judgment of conviction and remand to the trial court with directions to reinstate the judgment of February 10, 1995. Since, as we have already held, we lack jurisdiction to review that judgment, we lack jurisdiction to review the issues of probable cause and constitutionality of § 348.15, STATS., which the defendant attempts to raise on this appeal.
By the Court. — Judgment reversed and cause remanded with directions.