*1 Jr., error-Petitioner, Harold A. Plaintiff Hoppenrath,
v. Wisconsin, Defendant error.† State
Supreme Court Argued May 7, No. 1980. 1980. Decided June 78-433-CR. (Also reported 910.) in 293 N.W.2d denied, costs, August Motion for reconsideration without † part. 1980. ABRAHAMSON took no Steinmetz, JJ., *2 plaintiff error-petitioner For in the the cause was argued by Tyroler, public William J. assistant state de- fender, Cates, with whom on Richard L. the briefs was public state defender. argued by in
For the defendant error the cause was attorney Betty Brown, general, assistant whom R. with attorney general. Follette, Bronson La the brief was C. COFFEY, defendant, Hoppenrath, A. J. The Harold challenging ap- a writ of seeks review of error filed appeal pellate his a motion court’s refusal to consider suppress, to after degree of the crime of second defect, disease Following trial, defendant was com-
murder. Department of Health & Social Services mitted to the designated recep- Hospital as the with the Central State validity of not attack the tion center. The defendant did Department of Health & to the the commitment order only sought but appeals, in the court of Social Services pre- denying his his review of the orders motions, pursuant Stats.1 to sec. trial and was arrested the defendant On March degree charged murder first with the crime of father, Hoppenrath. shooting Harold R. of his death con- his advised of arrested and defendant was After the his rights, that he had entered he admitted stitutional shot house, father’s bedroom went into his father’s .25 caliber semi-automatic with a him times five loca- police of the informed the pistol. defendant The . . . trial. “971.31 Motions before or mo- suppress evidence “(10) a motion An order admissibility of a challenging of a statement tion not- upon appeal conviction be reviewed upon a judgment was entered withstanding the fact guilty.” casing weapon spent shells tion of the murder gun prior and told the officers how he had test fired shooting. appearance, appointed initial At the defendant’s defend- counsel informed court that he believed the proceedings against ant was to understand the “unable being court, so him to in his The assist own defense.” hearing advised, the defendant’s held a determine trial, competency proceed under hearing testimony, court found Stats.2 After com- probable had to believe that the defendant cause probably charged suf- “is mitted the crime fering aid from mental or defect and unable disease pursuant 971.14 court, to sec. own defense.” Stats.,3 to the Central (2), committed *3 competency respect to with Examination “971.14 proceed. a defendant’s to there reason to doubt Whenever is competency proceed, to shall: the court probable hearing that the “(a) it Hold a to establish whether is except charged, he has that defendant committed the crime preliminary previously examina- been bound over for trial after sentenced, adjudged such tion has not been or has been but hearing necessary. not be shall counsel, provide with the “(b) him without If the defendant is to call witnesses witnesses and to cross-examine state’s his own behalf. required by par. (a), hearing make “(c) At the conclusion probable guilt. finding on the issue proceed to affirmative, de- “(d) finding then If the in the competency proceed. to termine the defendant’s prove the “(e) failed If the that the state has charged, probability the crime that committed has may temporarily him discharge detain defendant, the court but permit proceedings under ch. 51 so be instituted as to civil competency.” determine his mental . “971.14 . . pursuant to sub. “(2) probable established When cause been physician appoint and (1), to examine at one least shall ap- report upon In lieu of such the condition defendant. thereto, pointment, order the defend- addition the court in facility county other mental health ant a state or committed to Hospital social, psychiatric,
State psycho- a “mental, logical neurological . . .” examination.
Following medical, psychiatric social and examina- tions, Hospital the Central State filed a authorities re- port stating with the court the defendant was not competent proceed to trial because he was unable proceedings against him, understand the nor the nature charged and, further, the crime could in not assist challenged his own hospital defense. The defendant report, requiring hearing. thus the court to conduct a At hearing, psychiatrist ap- the state and the court pointed psychiatrist testified, degree to a reasonable certainty, suffering medical the defendant was from a “schizophrenia para- mental illness described type” noid and at this time he was unable to understand proceedings against him or in assist his own defense. psychiatrists’ findings disputed The defendant presently capable defending myself stated “I am court, this trial.” hearing, after the found the de- person fendant to be “a who as result dis- ease or proceedings defect is unable to understand the against him or to own assist his defense” or- Hospital dered him committed the Central State “until time he shall have recovered.” eight commitment, than Less months after on No- hospital report vember filed a with facility purpose specified suitable for the examination for period days. not to exceed At conclusion of the examina- *4 tion, physician defendant, facility who examined the committed, department to which the defendant was or the com- institution, report mitted to a state shall forward written of such triplicate report examination in to the clerk. The of the examina- tion shall include: “(a) description examination; A of the nature of the “(b) diagnosis defendant; A of the mental condition of the “(c) If the defendant suffers or de- disease fect, opinion capacity proceedings as to his to understand the against him and assist in his own defense.” stating court, under sec. man “this improved sufficiently proceedings understand the against him to assist in his own and defense” and neither challenging finding. Ap- nor the state this hearing proximately preliminary weeks later two court, prob- held after the defendant was and the charged, ably bound him committed crime over trial. charging
An with information was filed the defendant degree pleas murder and he entered first and not of mental disease or defect reason at the time of the offense. filed a number of motions
Prior to trial the defendant including action, suppress his a motion to dismiss the physical and and evidence oral written confessions casing shells) as a (gun spent and recovered result alleged suppress In motion the confessions. his that: jurisdiction
1. the over court lacked probable stopped cause police Hoppenrath without 11 of the Wisconsin Con- of art. and in violation 4th, 14th Amendments 5th and stitution and Constitution; United States given the de- confessions
2. the oral and written for his arrest providing the basis fendant and also illegally against him were complaint filed the criminal rights; constitutional violation obtained and casing recov- were pistol spent shells and two 3. gained in the oral information as a ered result police in violation given to the written confessions Thus, evi- rights. constitutional of the defendant’s poisonous “fruit of suppressed as should be dence tree.” hearing court’s evidentiary the trial
Following an dismiss, includ- motions to defendant’s of all the denial other and the suppress his confessions ing the motions nego- attorney, with his evidence, Hoppenrath, physical *5 bargain plea allowing tiated a with the state him to plea guilty degree enter a to the crime second mur- der. The state then filed an amended information and the plea defendant entered a combined special plea amended information and by reason of mental disease defect at the time jury offense and waived his to a trial. The court accepted guilty plea degree the defendant’s to second determining murder after that was entered freely, knowingly voluntarily. and
During insanity phase of the both trial, defense psychiatrists appointed psychiatrist the court testi- opinion, degree fied that in their ato reasonable of med- ical “mentally ill,” certainty, the defendant was and was “suffering paranoid schizophrenia” from a type of men- tal illness at the time of the commission the crime. They that also stated as a result of mental illness capacity the defendant “lacked substantial to conform requirements appreci- his conduct to the or to law wrongfulness Moreover, they ate the of his conduct.” “mentally testified that the defendant was ill” at pres- time of the commission of the offense and ently suffering They from same “mental illness”. danger further stated he is a or others himself custody, and was in need of institutional care and treat- court, agreeing psychiatrists, ment. The trial with the found: “That at the time that this offense occurred at suffering defendant, hands of this the defendant was schizophrenia, paranoid type, a mental disease illness, illness as a result of that mental lacked sub- capacity require- stantial to conform his conduct law,
ments of will and therefore the court find him illness.” Secondly, testimony found, based psychiatrists, that: mentally “. . . the defendant is now ill and is a dan- ger proper subject to himself and to others custody
care and in an institution.” *6 compliance and defendant, ordered the in with sec. 971.- 17(1), Department committed to Health Hospital and Social with Services, the Central State designated center, discharged reception in as the until with accordance the law. defendant, Jr., Hoppenrath, The Harold A. filed appeals writ error the court to review with sup- suppression denying
court’s order his motion to press the and certain introduction confessions physical through evidence an of the commitment appeals order. commitment The court of affirmed the considering reaching order without or the merits of suppression juris- no order as the court that it had held sup- denying to review motion to diction the order press judgment in had been entered as no conviction pursuant appeal, for an this case petitioned court for Stats.4 The defendant now appeals’ a review of the court of decision.
Issue ruling that it appeals in error
Was the writ of jurisdiction lacked consider the defendant’s deny- requesting a trial order error review of the court’s phys- ing suppress and other his motion his confession principal appeal taken was not ical evidence because judgment from a of conviction? that the court defendant-petitioner contends holding jurisdiction to
appeals it lacked erred denying suppression motion. consider the order Specifically, contends defendant defect, and the sub- mental disease equiv- institution, is the sequent to a mental commitment charged crime judgment of conviction alent of a trial. . . . “971.31 Motions before suppress “(10) denying evidence An order a motion admissibility of a defend- challenging aof statement motion judgment upon appeal of conviction ant be reviewed upon a entered notwithstanding was that such fact guilty.” plea of thus, Stats.,5 contends that sec. al-
lows a denying review from an sup- order a motion to press Further, evidence. he contends that even if the circumstances of the defendant’s case “not do with- come express in the 971.31(10), Stats., terms of sec. this court should, can, judicially alter created rule of waiver of to review upon constitutional claims en- try guilty plea, give of a so as to policy the effect to the 971.31(10) behind 971.06(1) (d) secs. allow [to appeal] deterring unnecessary trials.” — 971.31(10), Stats., trial, entitled Motions before allows a to obtain of an review *7 suppress “upon a motion to judg- evidence from a notwithstanding ment conviction the fact of judgment upon plea guilty.” was entered a of There- fore, relying express language statute, on the appeals court appellate jurisdic- of held that it lacked tion suppress review the order the motion to principal appeal judg- because the not was taken from a question presented ment of conviction. The first in this finding guilty by is case a whether of reason judgment or disease defect constitutes a con- of viction as in the defined statute. 967.02(8), Stats., “judgment” pur- a
Sec. defines for poses of Criminal Procedure statutes as: adjudication “. by . . an the court that the defendant guilty guilty.” (Emphasis or supplied.) is not addition, 972.13(1), Stats., provides “judg- In that a sec. upon ment conviction a verdict shall entered of in guilty by finding guilty a the court jury, jury guilty waived, a a or no cases where or is supplied.) (Emphasis contest." In de- case the fendant, adjudicated Hoppenrath, be not was effect, by reason mental disease or in was, defect any acquitted, and thus stands unconvicted crime. 5 See: fn. 4. Stats.,6 legisla-
Furthermore, in see. entering upon ture has fit to the courts that seen direct “impose conviction, the court shall either a is and, or not fined withhold sentence placed proba- imprisoned, on or shall be defendant . was not tion. . .” In this sentenced case the confinement, placed probation fined on because or sentencing only a these are available to alternatives finding court and are not available after after finding or reason of mental disease sentencing defendant, trial than defect. Rather compliance reviewed the evi- court with the statute finding de- to whether the dence order to make a suffering presently a mental disease fendant was treatment, be- or defect and in need institutionalized Only danger others. after cause he was a to himself committed. was the defendant affirmative Stats.,7 provides (2), It noted that 971.17 should be sec. defendant, under committed to a mental institution periodic apply reexam- (1), 971.17 with the as follows: reads upon judg- “(2) applicable, Except in cases where ch. 975 impose sen- withhold either ment of the court conviction shall imprisoned, and, de- tence if the defendant fined or provided placed probation in s. 973.09. fendant shall be purpose may adjourn for the from time time case *8 pronouncing sentence.” 7 men Legal because effect of “971.17 tal disease defect. . . . or may be “(2) mental condition A of a defendant’s reexamination except provided reexamination the had that in s. given to committing be and shall the court notice shall be before may de- attorney. application the be made district the department. de- If the court satisfied fendant or the danger may safely discharged without fendant or released be discharge others, of the shall order the or or to it himself herself as the conditions order his or her release such defendant or satisfied, necessary. it shall If it is not so court to be determines department.” custody recommit him or her to the
458
inations of Application his mental condition. for reex- may every days. aminations be 120 made See: sec. 51.20(16) (a) (c), If the court finds that Stats.8 improved the defendant’s mental condition has to such degree safely discharged “may a that he be or released danger without or himself herself it others, discharge shall order defendant or order or her release on such conditions as the court determines necessary.” Therefore, to be the defendant could be period committed to for an institution as short a as 38 to days9 long period 120 or for as a “. . . as the defendant 51.20(16) (a) (c) provide 8 Sec. as follows: Except “(a) in the case of alcoholic commitments under s. 51.- any 45(13), involuntarily patient who committed treatment may patient’s chapter, petition, under this on the own verified ex- cept years age, in the a case of minor who is under 14 or on petition patient’s guardian, relative, friend, verified of the any person providing commitment, under order treatment request request modify a reexamination or the court to or cancel an order commitment. “(c) hearing If a respect subject has been with held in- days petition filing dividual’s commitment within of the 30 of a subsection, hearing under this no shall held. If be hear- ing days filing petition, not been has held within 30 of the of a days filing, but has been held within 120 of the the court shall filing completed within 24 hours of the examination to be days by appropriate within 7 board under s. 51.42 or 51.437. A may hearing then be held in the court’s discretion. If such a hear- ing days hearing been held within 120 filing, petition days receipt.” shall be held on within provides where reexamination hearing days filing pe has not been held within of the court, days tition with the but has been held within 120 filing day must, thereafter, within 1 order an examina —the completed days. may tion that must be within 7 The court hearing on then hold a the defendant’s mental condition Thus, process be released if cured. the reexamination could completed period days. Otherwise, be within short a as 38 a de may compel days pre fendant reexamination “after ceding examination.” *9 imprisoned been could have convicted offense charged. . (Emphasis . .” supplied.) Stats. argues
The defendant that he is confined as a result finding guilty by reason mental disease defect, adjudication this should be considered as practical equivalent of a of conviction. He states that the commitment to a mental institution impact has an on adverse him as it a results in loss of liberty prison following a finding similar to sentence a guilty charged. However, as to the crime it should pointed defendant, Hoppenrath, be out was com- to an mitted institution not because he had been found guilty crime, and convicted of a but rather it was be- “mentally “pres- cause the court found him to be ill” and ently dangerous subject to others he is fit guilty institutionalization.” If he had been found not because of mental disease or defect but had found been suffering presently from mental illness defect danger and not a to himself or others and not need hospitalization, the court would have been without authority commitment. legislature
Secondly, 972.13(1), Stats., in sec. ex- pressly mandates four limited where a situations judgment of conviction shall be entered: by jury;
1. when there verdict 2. when there is a the court where jury waived; by plea (if accepted B. when there ais court) ; and (if accepted
4. when
is a
of no contest
there
court).
language
to be
find the
of sec.
We
Engler,
unambiguous
v.
In State
clear
its face.
held
(1977),
Therefore, we hold Stats., clearly find- unambiguously that a establishes ing guilty by reason defect not of mental disease Therefore, judgment does not a of conviction. constitute agree appeals with trial and the court of we this was in that since no conviction entered case, 971.31(10) inapplicable. we that sec. was hold
Having 971.31(10), Stats., did determined that sec. grant con- case, we must review question. denying a motion sider second Is underlying pro- suppression, criminal in the entered ceeding, commit- from an order of reviewable following finding institution, ment a mental reason of mental disease defect, and a further presently that he is mentally ill, need of institutionalization because represents danger to himself or to others?
In State ex
Schubert,
Kovach v.
rel.
64 Wis.2d
(1974),
the trial court based conclusion that the defendant entirely inwas need of institutionalized treatment on examining testimony psychiatrists. psy- testimony base chiatrists did not their the statements gave following police which defendant arrest. an
This court has defined intermediate order one appeal judg- upon reviewed from a which be Ford, Dyke Cane, Inc. ment. State ex rel. Van v. 70 Wis. (1975). sup- In no sense is the 2d 285 N.W.2d pression in this to the order order case intermediate own, latter stands on its inde- commitment. The pendent proceedings, were con- criminal which ground by acquittal of the defendant on the cluded by or defect. he was not illness reason requesting In the court to this case the defendant finding. right grant appeal Ini from a not aggrieved tially, that the we note would have his favor. What legislation engage judicial and create do is findings a new v. Jaku In State reason of mental or defect. disease *12 (1973), 220, bowski, 212 155 N.W.2d Wis.2d court held that: right and, right statutory appellate is a “The to review appeal effect, statutory provision no to that absent
may be had. “ only jurisdiction appellate as .*. . court has [T]his by statute, only the statute to the extent allowed not come appealed allows. If within the to this court does a case allowing appeal, this of a statute such terms anything than jurisdiction other court has dismiss the do no to (1972), 54 appeal, . . .’ v. State Omernik Id. 223. 617.” at Wis.2d N.W.2d appel- authority to a new This court without fashion is judicially such remedy create late thus we decline legislature’s right re- appeal that it is and note sponsibility proper when it sees fit cases to amend right appeal. statute and create another
Therefore, denying view of fact that the order suppression the defendant’s motion was not reviewable pursuant agree Stats., 971.31(10), to sec. with we appeals’ ruling jurisdiction court of that it lacked defendant-petitioner’s, consider Hoppenrath, writ requesting error of that review order.
By appeals Court. —Decision the court affirmed. ABRAHAMSON, (dissenting).
SHIRLEY I S. J. dis majority concluding sent because I think the errs in appeals jurisdiction the court of no in this case. majority reaches this conclusion it because erro neously governs 971.31(10), Stats.,1 treats sec. it appellate jurisdiction appeals of the court of erroneously appeal treats this if it were taken denying suppress. an order a motion to Stats., grants Sec. neither denying appeal from an order a motion suppress, grants jurisdiction appeals nor to the court of denying to hear from an a motion to order suppress. part ch. en- Sec. 971.31 is 971 which is “Proceedings Trial;” titled Before and At ch. 971 is proceedings appeal. not concerned with Sec. 971.31 captioned explain Before I “Motions Trial.” As shall later, op- gives the accused the portunity denying appellate to obtain of an review 971.31(10), Stats., provides: “(10) suppress An order a motion or mo- evidence challenging admissibility tion of a statement a defendant upon appeal judgment be reviewed from a of conviction not- withstanding upon a the fact was entered *13 guilty.” perfected has an suppress, if the
motion to defendant appeal. opinion be-
Although majority lead one to would the appealed from the order lieve that the defendant has suppress that the evidence and his motion to validity of the commit- “did not attack the defendant opinion p. 1), (slip appeals” in ment order the court of attacking the The the facts are otherwise. defendant brought committing a writ validity him. He the order committing court’s order to circuit of error review the Department of and Social Services him to the Health Stats.,2 by pursuant 971.17, the court to 971.17, Stats., provides: Legal not because mental “971.17 effect by is found not disease or defect. When a defendant defect, order him to the court shall reason of mental disease or placed appropriate department in- to be be committed the discharged pro- custody, as treatment until care and stitution vided this section. may “(2) be mental condition A reexamination of defendant’s except provided the reexamination in s. had given committing be court notice shall be shall before the attorney. may application the de- the be made district department. de- If the fendant the the court is satisfied danger may discharged safely fendant be or released without discharge others, it himself or herself or to shall order on such defendant or order or her release conditions satisfied, necessary. it determines to be If it is not so shall court custody department. recommit him or her to the “(3) If, years release of a committed within 5 conditional person, hearing after that the conditions determines person safety release that the of such have been fulfilled safety requires be or the revoked, of others that his conditional release the court shall forthwith order him recommitted to department, discharge only subject or release in accordance (2). with sub. “(4) period for could When maximum which imprisoned charged have been of the offense convicted 973.155, provisions elapsed, subject s. to s. 53.11 and credit discharged subject the court shall order the defendant department against proceed ch. the defendant under department proceed, If the court 51. does so proceeding.”
465 having guilty by not found him reason of mental disease or attacking validity defect. The defendant is the of by attacking commitment order underlying one of the order, foundations of namely, guilt the defendant’s charged the crime (except for the defense of mental defect).3 or disease If the defendant not does admit guilt, guilty (re- and he is found not of the crime gardless of disease), his defense of mental he cannot be 971.17, committed Perhaps under sec. Stats. de- fendant procedure, could be under a civil committed but 971.17, not under sec. and criminal and civil commit- equivalents ments are not in Wisconsin. appeals
I conclude appellate that the court of jurisdiction in this case circuit because the court’s order finding of commitment based on its the defendant guilty by is not reason of mental disease or defect is only proceedings first “final and order” the criminal only between the and state is the order 3 971.06(1), Stats., provides: charged “Pleas. A defendant with a criminal offense plead as follows: Guilty.
“(a)
“(b)
guilty.
Not
contest,
“(c)
subject
approval
No
court.
by
“(d)
disease or defect. This
Not
reason
mental
plea may
joined
guilty.
plea
so
be
with
it
is not
not
If
joined,
plea
capacity the
this
that but for lack of mental
admits
defendant
all
essential elements of the offense
committed
charged
indictment,
complaint.”
in the
information
appears
971.06(1) (d),
It
a defendant
under
sec.
pleads
guilty by
who
not
reason of
disease
defect does
mental
actually
join
plea
“plea
guilty,”
be-
have to
this
with
plea
mental
or defect”
cause the
“not
disease
plea
guilty,
is itself
the essential elements
an admission of
except
capacity.
de-
the offense
In the instant case the
sig-
explained
plea
fendant did enter a
and the
finding
accepted
plea.
nificance of the
guilty
insanity
“presupposes
by
reason
the conclusion that
Burke,
charged.”
F.
v.
the acts
Hill
committed
Supp.
(1968).
Hebard,
408,
921, 928
v.
See also State
50 Wis.2d
(1971).
appealable this as of the defendant. governed law, pre-August 1, is proceeding, criminal a final in the commitment, If 974.03, pursuant 1975.4 appealable Stats. governed by post-August law, *15 commitment, finding in the criminal a final order pursuant proceeding, appealable to sec. pre- post-August appel Under 1978
Stats.5 both appeals practice procedure the court of late jurisdiction appeal. the hear contrast, majority
In there are two the reasons pro- two-part proceedings The is the criminal here. first finding by ceeding guilty in a of reason ended which finding appeal- This is not of mental disease or defect. says by defendant, majority, an it is able the the because According majority, acquittal. proceed- the second the ing in proceeding commitment ended here is the which commitment; appealable, an of this order is but order 974.03, Sec. 1975: Stats. supreme court; “Appeals taking. prosecut- lieu time for In may appeal supreme ing error, party a the court either writ provided in in the manner civil cases. The of a notice service appeal a or the issuance of writ of error shall be made within days entry judgment appealed the or If a after order from. 90-day period, motion a new within trial has been made an appeal judgment from the or denial the motion from the may days pronouncement conviction be taken within 90 after days motion within 90 after motion or is deemed overruled.” Stats.: Appeals op right. “Appeals appeals. to the court of as judgment county A or final final order of a court circuit or appealed ap- matter of court of peals expressly provided by judg- unless otherwise A law. final ment final order is a or order or entered accordance 806.06(1) disposes (b) 807.11(2) with s. which entire litigation parties, matter to one or more of whether ren- special proceeding.” in an action or dered appeal any arising review on would not include matters prior “acquittal.” to import of majority opinion
The is that the de- guilty by fendant found not reason of mental disease get “guilt” defect can never phase review of the majority says the trial. finding guilty by The of not reason of mental disease or equivalent defect is to an ac- quittal and that defendant cannot an “ac- quittal” aggrieved party. because he is not an equate
I finding cannot guilty by of not acquittal. acquittal disease with an In proceeding finding by criminal A ends. of not reason mental disease and defect does end proceeding. judge’s finding criminal of “not by reason of mental disease or defect” renders the de- subject to proceeding. fendant a criminal commitment aggrieved it, As I see is thus reason of mental disease or *16 defect, appeal but he cannot as of because find- ing finding is not a “final order.” The is the basis for namely step proceeding, next the criminal hearing. relating criminal commitment The order commitment final order under sec.
Stats.; disposition prosecu- it is the final of the state’s tion of the defendant. majority, relying on State ex rel. Kovach v. Schu
bert,
612,
(1974),
64
219
and State
Wis.2d
N.W.2d
Stovall,
148,
ex rel.
v.
Farrell
59 Wis.2d
Although Kovach Farrell the words “inde- use thinking speak- proceeding” was not or pendent the court proceedings appellate ing independent in terms of speaking of in- practice procedure. The court was comparing proceedings com- in terms of dependent sentencing proceeding proceeding and in to a mitment deciding protections are what constitutional terms explained required commitment. The to order State, clearly Huebner v. position Wis.2d Kovach (1967), upon which Farrell and 147 N.W.2d rely, saying: procedure essen- so this commitment consider “We sentencing
tially an portant mination of thereon penal as to amount different im- proceeding which determines independent rights to the deter- unrelated of the defendant hearing requires process guilt that due hearings subsequent it as much as does the same issue.” suppose ac- majority I opinion,
As a result of the deny- an order must, court enters after the circuit cused appeals, court of ing petition suppress, motion appeal Stats., the order. (2), for leave under sec. 808.03 must then de- appeal the accused If is denied leave guilty by plea proceed with his cide whether losing defect, thereby his mental disease or denying suppression opportunity of the order for review 971.17, withdraw- committed under he is disease of mental ing reason obtaining review defect, pleading the conviction. denying suppression on *17 “guilty” in pleaded In the instant case reasoning According phase trial. of a the first guilty, pleaded not majority, had the part by jury first guilty in the a found had been by guilty rea- not trial, found and had been bifurcated
469 son of by jury disease defect a in the second part (sec. 971.175, the trial Stats.), he could have not appellate alleged obtained review violations of con- rights during guilt phase stitutional of the trial. contrast, In an jury guilty whom a accused, finds sane, appellate can seek such review. Under the reason- ing majority, pleads guilty the accused who not guilty by jury and is found a would be forced to choose seeking appellate alleged between review of violations of rights during guilt constitutional which occurred phase pleading of the trial and majority
mental disease. does discuss the valid- ity statutory requiring of a an scheme to choose accused (1) jury appealing between verdict of which denying defendant claims is invalid him constitutional continuing rights, plea trial of not guilty by reason mental defect. am I concerned about forcing validity a defendant to make this choice. majority improperly
I believe the cast the issue jurisdiction.” “appellate case as one I believe right issue whether the defendant waived his to denying suppress seek review of to the order the motion by guilty.” “plea his Stats, (ef-
Prior to the enactment of sec. July 1, 1970), fective the defendant would have waived right review, his because this court had held that the right suppress review motion State, by guilty 12, Foster v. plea. waived 70 Wis.2d State, Hawkins v. (1975). 411 In N.W.2d 443, 446-447, 449-450, Wis.2d N.W.2d upon explained (1965), we the waiver follows: original pleas Upon guilty, “. .. his he had a trial. If he convicted use of evidence suppress,
had moved he could have obtained a review by By changing that course. He suppress. this court of the denial of his motion guilty, deliberately pleas rejected had advice of counsel who was aware *18 having mo- represented Hawkins problem, of the suppress. own statements before Hawkins’ tion to choice was deliberate clear that circuit made it range penalties to full of of the and that he was aware mistakenly, exposed. felt, perhaps He which he was advantageous pleas guilty to him be would lighter persuading would impose than a sentence the court Although has raised a trial. have followed questions said to validity can be which as to of the search clearly invalidity appear. arguable, does be nothing would en- find in the circumstances which We him, right, of the con- a to be relieved title as matter sequences of anit abuse choice, of his or which would make not to have done so. discretion guilty opinion, however, plea that a “We are of the is properly claim unlawful deemed a waiver of the ... unfair search and seizure require unlawful does seem [I]t litigate his claim that if he wanted to further search, pleas he should have with his continued guilty.” changed expressly the rule by providing waiver as follows: denying suppress “An a motion to evidence challenging admissibility a motion a statement judg- upon appeal a ment of from a be reviewed notwithstanding the fact conviction upon guilty plea.” was entered a plea permitting for a The reason accused to enter guilty challenge and to of his motion denial suppress encourage guilty pleas is to and to reduce only is whether number of trials when the issue contested denying suppression of or not the order motion proper. evidence was
The Judicial to sec. Council Comment Stats., explains purpose follows: the section provision. permits a defendant is new It “Sub. entry when, prior sup- plea, a motion the court had denied press review, appellate evidence. On court can de- termine whether suppression or not the order *19 proper. of N.Y. contested trials since in suppress of subsection, evidence was This upon based 813-c, s. Cr. Code should reduce the number of many situations, the motion to really evidence is determinative of the result trial. In usually the such instances defendants are only contesting or not 06 affords a legality the of the search and whether they did, fact, possess in the items seized. S. 974.- complementary right to the state should conjunction in be read with this subsection.” 42A Wis. p. (1971). Stats. Annot. majority Stats., is correct that sec. 971.31(10), speaks “appeal in terms of from a of convic- interpret majority tion.” holding, I opinion aas statutory (1) legisla- matter of construction, very ture (10), intended sec. 971.31 to be a limited exception general guilty plea to the rule that a waives right challenge order; (2) the defendant’s to that the applicable section is here because there is no conviction; from a
instant case a waived his of of the review plea disagree guilty. I interpretation of with this of sec. 971.31(10). legislature Several factors indicate that reading narrow, this did not intend restricted sec. 971.31(10), Stats. 971.31(10) designed an
Sec. was alleviate undesir- to unnecessary procedural able “catch 22” which caused over-burdening adoption of trial calendars. Prior challenge sec. the accused wished to legality evidence, to the accused had use subject himself and the to a trial on the issue state guilt. money time, man- a trial is a waste Such power. designed 971.31(10) allow ac- was challenge legality cused to of the use of the evidence having guilt without a full trial on the endure issue reasonably accomplish interpreted this and should be purpose. appli- prior a
This court has in decision extended the beyond specific 971.31(10) terms to in- cation of its sec. reasonably terpret 971.31(10) accomplish pur- its sec. 452, 454, pose. Meier, In State v. 210 N.W.2d Wis.2d 971.31(10) (1973), en- court extended sec. compass plea nolo who contend- enters ere, although 971.31(10) speaks only plea of a plea guilty. apparently that a The court concluded essentially crim- nolo in a contendere has same effect logical plea it to as- inal case and that legislature 971.31(10) in- that the intended sec. sume legisla- though of nolo clude contendere even ture failed to so state. legislature
I the word “conviction” believe used convey the de- *20 sec. the idea that Stats., litigation appeal after the between fendant will take legislature words, parties In is concluded. other appeal judgment the final wanted defendant to denying order, from the “intermediate” order suppress. Interpreting motion to way, I commitment in this conclude that a has, reason of mental disease defect essentially ef- purposes for the same of sec. be treated fect as a of conviction and should (10). purposes as a for of sec. 971.31 conviction juris- appeals has conclude that court of Because I has not and that diction over challenge court’s order the circuit waived his suppress, the mat- I would remand motion appeals determination ter to claim. merits the defendant’s Beil- I that Mr. Chief Justice am authorized state dissenting join in this Heffernan fuss and Mr. Justice opinion.