This is a review of an unpublished decision of the court of appeals dated April 16, 1986, summarily affirming defendant Ann M. Malone’s conviction of operating a motor vehicle with a blood alcohol concentration of .10 per cent or more, in violation of sec. 346.63(l)(b), Stats. Malone’s case was heard by a jury in Washington county circuit court, Reserve Judge Clair Voss presiding. This case presents one issue for review, namely, does a court have appellate jurisdiction to review the denial of a defendant’s postconviction motion for a new trial when a written order denying the motion has not yet been entered; when the defendant’s notice of appeal simply indicates that appeal is being taken from the conviction, rather than from the denial of the motion for a new trial; and when the sole issue on appeal, whether the defendant was denied effective assistance of counsel, was raised for the first time by the postconviction motion? We believe that the appeals court properly determined that it lacked jurisdiction to consider defendant’s claim and now hold that an appellate court has no jurisdiction to review the denial of a postconviction motion if there is no final written order denying that motion on file in the office of the clerk of court. See, secs. 807.11(2) and 808.03(1), Stats. We therefore affirm the appeals court’s summary affirmance of defendant’s conviction.
Petitioner (defendant Malone) was initially charged with operating a motor vehicle with a blood alcohol content of .10 per cent or more 1 and with driving under the influence of an intoxicant or controlled substance. 2 These charges arose as a result of an arrest which occurred on December 12, 1983. The charge under sec. 346.63(l)(b) was based upon a breathalyzer reading of exactly .10 per cent. Malone was convicted by a jury on October 23, 1984, of operating a motor vehicle with a blood alcohol content of .10 per cent or more, but was found not guilty of the latter charge. Malone was represented at trial by an attorney from the state public defender’s office.
At trial, Judge Voss had ruled that the proffered testimony could only be introduced by an expert and that the police officer did not qualify as an expert. Trial counsel did not then attempt to introduce the testimony of an expert on this point. Subsequent to
Appellate counsel’s postconviction motion was supported by an affidavit supplied by a professor of science, chemistry, and physics. The professor stated that the breathalyzer machine had a possible variance of plus or minus .005 and that individual breath variations from person to person could be as much as plus or minus .03, for a total possible variance of plus or minus .035. Since Malone’s conviction was based on only a breathalyzer reading of .10, counsel argued that there were insufficient facts to prove beyond a reasonable doubt that Malone had an alcohol concentration of .10 or more, because the possible variance ranged from a low of .065 to a high of .135.
On October 1, 1985, the motion for a new trial was heard and was denied orally by Washington county circuit court judge James B. Schwalbach. During the motion hearing, Butler first discovered that trial counsel had in fact requested help from the state public defender’s office in attempting to obtain testimony from a breathalyzer expert and that nothing ever came of that request for aid. Butler thereafter determined that due to this newly discovered informa
In his request for an extension of time, Butler stated that, "As of this date, no written order has been entered by the trial court denying the motion, as this attorney has not prepared an order for the court’s signature.” The court granted Butler’s request for an enlargement of time. For reasons not in the record, neither Butler nor Boyle prepared or filed a written order, and Boyle filed a notice of appeal only from the judgment of conviction and not from the court’s denial of the motion claiming ineffective assistance of counsel. Yet, Boyle’s brief on appeal focused exclusively on the alleged ineffective assistance of counsel on the part of the public defender’s office in failing to supply the expert testimony requested by trial counsel.
On appeal, the court of appeals held that it lacked subject matter jurisdiction to consider Malone's claim of ineffective assistance of counsel and, therefore, affirmed the circuit court's denial of her postconviction motion. The appeals court believed that it had no jurisdiction to review Malone's claim for two reasons: (1) a written order denying the motion for postconviction relief had never been entered, and (2) the notice of appeal had been taken from the judgment of conviction only and not from the court's order denying Malone's postconviction motion. The court stated that this latter point was relevant because "[t]he notice does not vest this court with subject matter jurisdiction over anything other than the
On appeal to this court, petitioner maintains that due to the significant constitutional issue raised, as well as her good-faith efforts to take the appeal, this court should ignore "mere technicalities] in procedure” and, in the interest of justice, find that the intermediate court erred in affirming Malone’s conviction. Respondent, on the other hand, believes this issue can be disposed of based upon a simple determination that Malone’s appeal may not be considered at this time because she failed to comply with the statutorily prescribed steps for securing appellate review. Respondent contends that the statutory sections mandating that an order reflecting the denial of Malone’s postconviction motion be "entered,” and that any appeal be taken from the final order of the circuit court, are not mere formalities and instead reflect a legislative attempt to ensure that "an ordered system of appellate justice” is maintained. We now address the parties’ arguments in more detail.
II.
We preliminarily note that we are not required to give deference to the decision of the appeals court since this case involves a question of law. Questions of statutory construction are questions of law.
Ball v. District No. 4, Area Board,
The procedure for securing appellate review is enumerated in sec. 808.03(1), Stats., which states in
These statutory sections, when considered in conjunction with one another, indicate in unambiguous terms that an appeal may be taken only from a final judgment or, as is the case here, from a final order. In turn, a final order is one which, under sec. 807.11(2), Stats., is entered. 3 A final order is not entered until it is filed with the clerk’s office. The fact that a final order must be filed before it can be entered and that an order is not rendered until it is signed by the judge as provided by sec. 807.11(1), of course indicates to us that a final order must be in writing.
We have previously recognized that oral orders, although effective as soon as they are announced, must nevertheless be reduced to writing before an appellate court may have jurisdiction to review them.
State ex rel. Hildebrand v. Kegu,
In reaching this holding, we have considered the arguments raised by Malone, but have found them to be without merit. She urges this court to essentially waive the statutory requirements for obtaining appellate review in her case because it would arguably be in the best interests of justice to do so. In support, she cites cases where the court has stated that significant constitutional issues not brought up at trial may nevertheless be considered by the appellate court if both parties have briefed the issue, no factual issues remain unresolved, and the court determines, in its discretion, that the interests of justice would best be served if review is obtained.
See,
e.g.,
In Interest of Baby Girl K.,
Petitioner argues in addition that since the po-stconviction motion is part of the trial record, reliance on the written order rule is not necessary. Petitioner proposes that this court create an exception to the statutory jurisdiction rules in order to ensure that she is not denied her constitutional right to appellate review. Malone implies that literal compliance with the written order rule here would have this effect. We decline to accept this argument. It is simply inaccurate for petitioner to assert that the jurisdictional procedure has the effect of absolutely precluding appellate review of her claim of ineffective assistance of counsel. To the contrary, as soon as a final written order is entered and filed with the clerk of the circuit court and an appeal is taken from that order, the issue may then properly be considered by the court of appeals.
Malone argues next that the court, pursuant to sec. 807.07(1), Stats., has the discretion to overlook defects or omissions in the appeal papers if the appeal was taken in good faith. We have no doubt that Malone’s attempt to appeal was made in good faith. However, a careful reading of sec. 807.07(1), when accompanied by the judicial council committee’s note, plainly indicates that sub. (1) "addresses jurisdiction over the parties and not the subject matter jurisdic
Malone’s final argument is that discretionary reversal in the best interests of justice, sec. 752.35, Stats., is warranted since the evidence here is insufficient to find her guilty of the offense charged beyond a reasonable doubt, and a new trial would likely result in acquittal. However, we have uncovered no case where this court or the court of appeals of this state has construed sec. 752.35 to apply to a situation even remotely similar to that present here. We cannot imagine that the legislature ever intended that sec. 752.35 be used as a means to avoid compliance with appellate jurisdiction prerequisites. We will not deviate from adherence to the rule that a court may not waive the statutory requirements for subject matter jurisdiction.
See, Strong,
We reiterate that our holding does not foreclose the consideration of Malone’s arguments on an appeal if the jurisdiction of the court is properly invoked. We have regarded this as the underlying factor which supports our holding, apart from our reading of the statutory requirements. If the subject matter jurisdiction requirements contained in secs. 807.11(2) and 808.03(1), Stats., are complied with, then the appeals court would have jurisdiction to review the constitutional issue Malone raises.
Notes
Section 346.63(l)(b), Stats., provides as follows: "346.63 Operating under influence of intoxicant or other drug. (1) No person may drive or operate a motor vehicle while:
"(b) The person has a blood alcohol concentration of 0.1% or more by weight of alcohol in that person’s blood or 0.1 grams or more of alcohol in 210 liters of that person’s breath.”
Section 346.63(l)(a), Stats., provides as follows:
"(1) No person may drive or operate a motor vehicle while:
"(a) Under the influence of an intoxicant or a controlled substance or a combination of an intoxicant and a controlled substance, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving;...”
Section 809.30(1)(h), Stats. (1983-84), additionally refers to the entry of an order.
Petitioner advances a similar argument when she relies on
Illinois v. Gates,
We do not believe that the United States Supreme Court in Gates intended that the language cited by petitioner be construed so as to allow a court to waive compliance with its subject matter jurisdiction requirements, either.