Summary
In Spannuth v. State, 70 Wis.2d 362, 234 N.W.2d 79 (1975), the defendant was convicted of a single charge of forgery, contrary to sec. 943.38(2), Stats.
Summary of this case from Garski v. StateOpinion
No. State 49 (1974).
Submitted under sec. (Rule) 251.54 October 2, 1975. —
Decided October 28, 1975.
ERROR to review a judgment and an order of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit judge. Judgment modified and affirmed; order vacated.
For the plaintiff in error the cause was submitted on the briefs of Anthony K. Karpowitz of the Legal Aid Society of Milwaukee.
For the defendant in error the cause was submitted on the brief of Robert W. Warren, attorney general, and Robert D. Martinson, assistant attorney general.
George Spannuth, the plaintiff in error (hereinafter defendant), was convicted of forgery (uttering), contrary to sec. 943.38(2), Stats., upon his plea of guilty. Sentence of an indeterminate term not to exceed eight years in the Wisconsin State Prison was imposed, with the additional requirement that restitution in the amount of $11,000 be made. Writs of error issued to review the judgment and order.
On July 26, 1973, defendant entered a plea of guilty to the crime of forgery (uttering). Pursuant to an agreement with the district attorney, prosecution on two similar violations was waived in exchange for their "read-in" consideration for sentencing purposes. Factual testimony established that defendant had been employed for two years as a bookkeeper by the corrections legal service program of the Wisconsin correctional service. On April 30, 1973, defendant signed and deposited a check for $4,000, made out in his name, in his own bank account. The check was drawn on the corrections legal services account and bore the purported signatures of the program director and a program secretary, necessary for any such check to be drawn. These parties had specifically denied such signatures as being their own and denied giving permission to anyone to sign their names. A similar factual pattern was alleged for two other checks, drawn for the amounts of $5,000 and $2,000 respectively. On the basis of the plea and testimony given, the trial court accepted the plea.
Trial counsel for the defendant made the following statement in response to recommendations as to sentence:
"The defendant turned himself in. . . . He has indicated to me on numerous occasions that he wants only to plead guilty and wants to make restitution as soon as he is able to do so. He appears to me to be very sincere in this. He has indicated that even if this court finds that he should be incarcerated and orders incarceration, nonetheless, it is his intention and desire to make restitution and that in fact to show his sincerity in that matter, he would ask that the court, whatever disposition the court makes, that the court include in that that restitution be required."
In imposing sentence the trial court concluded:
"The court is taking into consideration your past record of criminal involvement and also taking into consideration the amount of money forged in the said checks, and the court does order restitution of $11,000 to the Wisconsin Correctional Services."
Two issues are presented for review:
1. May this sentence be reviewed by writ of error?
2. Was the action of the trial court of imposing restitution in addition to the sentence within the court's jurisdiction?
Route of appeal
. The defendant in effect appeals from the sentence.The overall sentence is challenged insofar as it contains the requirement of restitution, orally ordered by the trial court.
We think the proper method of correction is via a sec. 974.06, Stats. motion:
"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."
A fair reading of the contentions of counsel indicates that the order of restitution in this case arguably is not authorized by law, is not available under the established limits of the trial court's jurisdiction, and constitutes a penalty excessive of that authorized by law. The above postconviction procedure is applicable.
The writ of error is argued as appropriate on the basis of Babbitt v. State (1964), 23 Wis.2d 446, 127 N.W.2d 405. That decision held that sentencing judgments are final judgments for purposes of review by statutory writ of error, particularly as to challenges over jurisdiction to impose sentence or challenges as to the sentences exceeding the limits prescribed by statute. This decision, however, preceded the enactment of sec. 974.06, Stats., in ch. 255, sec. 63, Laws of 1969. No decision construing the coverage of sec. 974.06 has concluded that it should be the sole procedure when excessive sentencing challenges are raised. There is, however, the frequently stated requirement that when sentences are challenged as excessive under the facts or as being the result of an abuse of discretion, no consideration can be given by this court unless a motion raising such error is made to the trial court; compelling circumstances being an exception to the requirement. Gaddis v. State (1974), 63 Wis.2d 120, 129, 216 N.W.2d 527; Korpela v. State (1974), 63. Wis.2d 697, 701, 702, 218 N.W.2d 368; State v. Wuensch (1975), 69 Wis.2d 467, 479, 230 N.W.2d 665. There is also the evident belief, embodied in the statute, that the trial court cognizant with the facts may more properly deal with the issue and correct any error without resort to this court. Denials of such motions by the trial court then would allow appeal to be made to this court. Sec. 974.06(7). In Ferch v. Schroedel (1942), 241 Wis. 457, 461, 6 N.W.2d 176, a civil case, this court reiterated:
"`This court has repeatedly held that where a specified method of review is prescribed by an act creating a new right or conferring a new power, the method so prescribed is exclusive and if review is sought that method must be pursued.'"
Although the creation of the new appeals route of sec. 974.06, Stats., as a replacement for habeas corpus, is not a "new power or right" with an attached avenue of appeal, the legislative choice of providing a standard appeal route is equally apparent and should be given effect by barring use of the writ of error in favor of sec. 974.06. However, in the instant case, for the purpose of making a final disposition we will consider the merits of the case.
Validity of restitution order
. The offense proscribed by the legislature with which defendant was charged, forgery, provided that he could be "fined not more than $5,000 or imprisoned not more than 10 years or both." Imprisonment for a lesser term than the maximum prescribed may be pronounced, sec. 973.01, Stats., and impliedly a fine less than the maximum amount may be imposed. Probation may be granted in lieu of all punishment, sec. 973.09, or probation may be coupled with a fine, sec. 973.05(2), or restitution, State v. Gerard (1973), 57 Wis.2d 611, 619, 205 N.W.2d 374. Restitution is merely one of the many appropriate conditions a trial court can impose when probation is granted. State v. Garner (1972), 54 Wis.2d 100, 105, and footnote 4, 194 N.W.2d 649.No statute, however, allows the trial court to impose any other conditions, no matter how "reasonable and appropriate" they appear, when the statutory penalty rather than probation is chosen. The evident purpose the legislature is that each defined crime would have a proscribed maximum punishment, which may not be exceeded by the courts of this state. It is a well-established proposition in our system of separate branches of government that the authority to punish is a matter for the legislature.
We are satisfied that the trial court made the order of restitution because it was specifically requested by defense counsel. However, the court was without authority to make this order of restitution.
This case is decided on the merits, with a warning that sec. 974.06, Stats. should be used in the future. The judgment is modified by vacating the portion of judgment directing restitution and the order for restitution is vacated. The judgment as modified is affirmed.
By the Court. — Judgment modified and, as modified, affirmed. Order vacated.