Opinion
Case No. 00-2523-CR.
Opinion Released: December 21, 2000. Opinion Filed: December 21, 2000. This opinion will not be published. Wisconsin Stat. Rule 809.23(1)(b)4.
APPEAL from a judgment and an order of the circuit court for Dane County: ROBERT A. DeCHAMBEAU, Judge. Reversed and cause remanded.
Andrew Obriecht appeals a judgment of conviction and an order denying postconviction relief. Obriecht was convicted of violating Wis. Stat. § 947.012(1)(b), a Class B misdemeanor. Section 947.012(1). Obriecht received a nine-month sentence, concurrent to a sentence for a separate violation of the unlawful use of a telephone. He contends that the maximum period of incarceration for a Class B misdemeanor is ninety days. He moved the circuit court for postconviction relief, citing Wis. Stat. § 939.51(3)(b), and his motion was denied.
¶ 2. The State agrees that the maximum period of incarceration for a Class B misdemeanor is ninety days. Wisconsin Stat. § 939.51(3)(b) states in relevant part:
(3) Penalties for misdemeanors are as follows: . . . (b) For a Class B misdemeanor, a fine not to exceed $1,000 or imprisonment not to exceed 90 days, or both.
Because Obriecht was convicted of a violation of Wis. Stat. § 947.012(1)(b), which states on its face that it is a Class B misdemeanor, and because § 939.51(3)(b) states the maximum penalty for a Class B misdemeanor, we conclude that Obriecht's contention on appeal is meritorious, as is the State's confession of error.
This court greatly appreciates the candor of the State in its brief in regard to the confession of error.
¶ 3. Therefore, we conclude that the judgment of conviction must be vacated, and the cause is remanded for the circuit court to enter an amended judgment with sentencing not to exceed ninety days' incarceration.
By the Court. — Judgment and order reversed and cause remanded.