*1 Wisconsin, Plaintiff-Respondent-Cross STATE of
Petitioner, RACHWAL, Defendant-Appellant-Petitioner. Sterling
Supreme Court January Argued 1990. Decided October No. 89-1198-CR. 23, 1991. (Also 490.) reported in 465 N.W.2d *3 ABRAHAMSON, J., concurs.
For there defendant-appellant-petitioner were D. argument by Phillips, briefs and oral Steven assistant public state defender. plaintiff-respondent-cross petitioner
For the Becker, argued by attorney cause was David J. assistant Donald general, with whom on the briefs J. was Hanaway, attorney general.
STEINMETZ, J. are in There two issues this case. The first issue is of no contest whether to a charge complaint embodying a criminal a sec. 973.12(1), Stats., "repeater prior provision" alleging a conviction an constitutes admission purposes statute such under the of conviction of pursuant sentence enhancement to sec. The cir- 939.62. county, Outagamie Joseph Troy, Judge, cuit court for M. ruled that such a does constitute such admission. whether, The second issue is when two criminal joined defendant, are actions on motion of does repeater charge alleged admission of the status one apply respect also an admission with to the same repeater alleged charge. status the other The trial appeals, court answered in the affirmative. The court of unpublished opinion, in an reversed and remanded resentencing case for originating on on the conviction county. Outagamie We of reverse court appeals.
[*] [*] [*] [*] Sterling charged defendant, Rachwal, The n Outagamie county felony alleged with a offense for resulting intentional mistreatment of an animal in the contrary animal, death 948.18(1), 948.02 and secs. (now 951). Stats. ch. The 1985-86 informa- 973.12(f),1 charge pursuant tion included a sec. to sec. 973.12(1), Stats., provides 1 Section as follows: (1) repeater. person of a 973.12 Sentence Whenever a charged repeater with a will be in s. crime as defined 939.62 if convicted, any prior may complaint, in the any alleging or indictment at information amendments so time arraignment acceptance any plea. before or at and before may, upon attorney, grant court motion the district a reasonable *4 investigate possible prior accepting plea. time to convictions before a prior by proved by If such are admitted the defendant or state, subject he the shall be to sentence under s. unless he 939.62 pardoned grounds any that establishes he was on of innocence necessary report repeater. him crime to constitute a An official of the any governmental agency F.B.I. or other of the United States or of any prima any other shall be this or state facie evidence of conviction 497. "prior con- whether the is no issue as to There
939.62.2 specifically 973.12(1) speaks were of sec. victions" which provision." "repeater the accurately set forth within and pleaded not The defendant Any reported reported. be so shall sentence or sentence therein n prima folly confinement facie to have been served actual deemed period is shown or is such of time as or to have been served for judicial report. The court shall take notice consistent with the determining foreign states in United States statutes the felony prior or misdemeanor. the was for a a whether conviction Stats, 973.12(1), qualifying the requirement that Section proved by by or the prior convictions be "admitted particular importance in this case. is of state" 939.62, Stats., part: provides, in 2 Section criminality. (1) penalty the If Increased for habitual (2), present repeater, is defined in sub. actor is a as that term may imposed any imprisonment be crime for which conviction is for 946.42) escape impris- (except maximum term of for an under s. by may prescribed be for that crime increased follows: onment law (a) year may A less maximum term of one or be increased to years. more not than 3 (b) year A maximum of more than one but not more than term years years may by prior not 2 if 10 be increased more than by years not than 6 if convictions were for misdemeanors and more felony. prior conviction for a was (c) years may A more 10 be maximum term of than increased years prior not more than if the convictions were for misde- years if meanors and not more than 10 conviction was felony. for a (2) felony repeater is The actor if he was convicted during 5-year period immediately preceding the commission of sentenced, presently being crime or if for which he is he was separate during convicted of on 3 occasions a misdemeanor period, It same which convictions remain of record and unreversed. suspended, stayed, is immaterial that sentence was withheld or pardoned, pardon granted ground he was on the unless such 5-year computing preceding period, time which innocence. spent serving the actor criminal actual confinement sentence shall excluded. *5 his to trial right jury. guilty waived He was found after bench was accordingly. a trial and convicted
Prior sentencing, to he filed what "Application denominated as for Consolidation from Waupaca County," 971.09, pursuant to sec. Stats.3 his 971.09, Stats., provides
3 Section as follows: (1) Any person who admits that he or she has committed county custody in crimes the in which he or she is in also in and county may attorney apply in another this state of district the county custody charged in he is in which or she to with be those person may plead guilty crimes so that the for them be sentenced county custody. application description in the of The shall contain county of the in all admitted crimes and name of the which each was committed. (2) Upon receipt application attorney the of the district shall prepare charging naming an information all the admitted crimes and county in each count the each where was committed. He shall send a copy attorney county of the information to the district each of other crimes, together in which the defendant admits he committed with a applied plead guilty statement the defendant has in to county custody. Upon receipt statement, of information attorney county may the district of the other in execute a consent writing allowing plea guilty county the defendant to enter a of custody, charged of to the crime in the and committed in information county, attorney prepared other and send it to the district who the information. (3) attorney any The district shall file the information court county having jurisdiction try plea guilty accept of his to of to which, alleged alleged the most serious crime as if to therein to have county, attorney been committed another of district county (2). provided has executed a consent as The sub. defendant may plea alleged then enter to all offenses to have been county committed in the where the court is located and to all offenses to have been committed in other counties attorney (2). which the district has executed a consent under sub. guilty, entering Before his the defendant shall writ- waive any ing right county tried in where the crime commit- attorney ted. district where the crime was commit- present ted need not be when the is made but his written consent shall be filed with the court. (4) Thereupon judgment, shall court enter such the same guilt
"application," defendant admitted his as to a Waupaca county charge pending in misdemeanor *6 Attorney Waupaca application the of to District "made Attorney Outagamie County of and to the District charged County [misdemeanor], . . . to the com- be with may plead Waupaca county, so that he mitted Outagamie county." therefore and be sentenced county complaint Waupaca essen- The contained 973.12(1), "repeater provi- tially Stats., the same sec. Outagamie county information, sion" found in the set- predicate ting the for sec. 939.62 sentence forth factual respect the As is the case with to enhancement. county Outagamie information, there is no issue as to provision" "repeater alleged the set forth the whether accurately specifically the county complaint. Waupaca "repeater provision" specifically complaint's The alleged that the defendant had been convicted on four period charges five-year imme- within the misdemeanor alleged diately preceding of the commission the offense complaint Again, the the based. these were on which Outagamie county very allegations in the same made provision." complaint alleged: "repeater The though charged all were to have been committed the crimes located, county the court is whether or not the court has where jurisdiction try has to all those crimes to which defendant pleaded guilty under this section. (5) county pay plea The is made shall the costs of where them, pay prosecution if not and is the defendant does entitled any may receiving paying fine fees for to the state which retain by paid plea The clerk where is made shall file a defendant. copy judgment of conviction with the clerk each crime attor- where a covered was committed. district ney any charges shall then covered move dismiss against pending county, guilty, which in his are thereupon shall be dismissed. the same Further, invoking provisions of sec. 939.62(1)(a) Statutes, Wisconsin the defendant was duly previously following convicted of the offenses in Waupaca County Circuit Court: Convicted three mistreating counts of the misdemeanor crime of ani- mals, contrary 948.18(1), to sec. 948.02 and sec. Wis- 8, 1983,4 September consin Statutes on and of one count of the misdemeanor mistreating crime of animal, contrary 948.18(1), to sec. 948.02 and sec. July 26, 1984, Wisconsin Statutes on which convic- and, therefore, tions remain of record and unreversed upon charged conviction of the proof offense and repeater, may $10,000 be fined not more than imprisoned years, not more than 3 or both.
Considering
971.09, Stats.,
the defendant's
sec.
"application
consolidation,"
the Outagamie county
*7
circuit court judge determined that
the charge originat-
in
ing Waupaca county
properly
had been
effectively
combined with the Outagamie
proceeding under
purposes
disposition
the statute for
of common
judg-
determination,
In reaching
ment.
this
judge
asked
the defendant whether he understood that he had "then
pending at this time a charge
charged
which was
in
Waupaca County
you
your attorneys
but which
have
agreed should be
here in
Outagamie County
handled
this courtroom."
responded, "yes."
The defendant
Hav-
ing determined that a sec. 971.09 consolidation had
place,
judge proceeded
taken
question
to
the defen-
939.62(2), Stats., speaks
4 Section
of conviction of a misde
separate
According
meanor on
. . .."
"three
occasions
to the lan
information,
guage
of the
three of the four
misdemeanor
convictions
were obtained on the same date. Nevertheless
met,
requirements
of the statute are
because conviction
a
separate
requires
misdemeanor "on 3
occasions1'
prior misdemeanors,"
separate
appearances.
three
not three
court
Wittrock,
664, 674,
(1984).
State v.
119 Wis. 2d
It is as a misdemeanor which means normally that for the up offense alone there would be 502 $10,000 jail sentence to a nine-month and a fine or complaint charge against you both. But allegations you previously includes have been sufficiently convicted so that this would be consid- repeater type ered a of an offense which would penalties up increase the to a maximum of zero to $10,000 years prison, up three from no fine but possible penalties in fine or both. Those are the you you plea if would face would enter a to this charge. you Do understand that? answered, "Yes."
The defendant proceeded The court to ascertain that there had judge with the state. The plea agreement been no specific the defendant of the constitutional informed submitting plea in con waiving by he would be rights 971.09, Stats., and he ascertained the formity with-sec. understanding rights. of the nature those defendant's plea asked the defendant his judge then pleaded The defendant no contest charge. misdemeanor again The court ascertained or nolo contendere. of the nature of the understanding that, any light repeater allegations, and the fact as a might be enhanced incurred the action penalties Determining the defendant guilty. found being result of freely, voluntarily and entering his no contest matters,5 accepted the the court these intelligently The trial guilty charged. found the defendant plea to that a could have demanded judge com statutorily be entered to Waupaca county charge of sec. 971.09.6 provisions plete 385, 377, 9 151 N.W.2d Reppin, Wis. 2d v. 35 5 See State 608, State, 552 180 N.W.2d (1967); 2d v. 48 Wis. Martin State, 449, 454, 293 N.W.2d (1970); 2d Hoppenrath 97 Wis. (1980). Stats., will 971.09, assumes that
6 Section *9 in taking While the course of the defendant's specifically court drew defendant's attention to repeater provision, judge directly did not ask the specified prior defendant whether existed; specifically acknowledge nor did the defendant proof any convictions. The state offered no prior conviction of the defendant. proceeded
The court
sentencing
on both the fel-
ony
charge originating
county,
Outagamie
of which
"plead guilty"
specifically
possibility
and does not refer
to the
of a
State,
plea.
636,
no contest
As we said in Ellsworth v.
258 Wis.
(1951), however, plea
contest,
Section also in terms of the district attorney preparing filing pursuant and an "information" to the application. significant defendant's It purposes is not for of the section that the crime admitted was a misdemeanor instead felony. complaint originating Waupaca county joined Outagamie county with the file with the information. The two part upon documents were of one file judge consolidation and the accordingly having treated them them both him front of taking plea. when requirement This satisfied the (2) "[u]pon receipt sub. application the district attor- ney prepare shall charging information all the admitted crimes naming each count where each was committed." addition, significant it is not today issues before us Ellsworth, infra, which we will example, speaks consider only of an "information" complaint. and not of Id. For our
purposes, "complaint" "information" and serve the same function charging that each is a document. convicted, the defendant had been found *10 Waupaca, charge originating in the misdemeanor pled which The court the defendant had no contest. imposed consecutive, the maximum sentences on each of fully utilizing repeater convictions, the enhancement by Stats., 939.62, authorized sec. on both. appealed arguing
The defendant the sentences that 973.12(1), pursuant Stats., to sec. the evidence of the alleged prior support convictions insufficient to the Regarding sentence enhancements under sec. 939.62. the originated Outagamie sentence on the county, that appeals agreed defendant, court of with the holding support that the evidence was not sufficient to the enhanced sentence. The court determined that there proof by by no and no had the state admission been prior alleged in defendant of the convictions Outagamie county However, information. the court of appeals upheld charge originating in the sentence on the county. pleaded Waupaca Noting the defendant no county, charge Waupaca contest to the appeals the court of admission," found what it called a "constructive alleged plea determining such a "admits matters quoting plea entered," Ells the information when the is State, 636, 638, 46 N.W.2d worth v. 258 Wis.
(1951).
[*]
[*]
[*]
[*]
ques-
regard
issue, the fundamental
With
to the first
support is
the record was sufficient to
tion whether
repeater,
sentencing of the defendant as a
trial court's
prior
pursuant
Stats.,
939.62,
on his
misde-
sec.
based
court erred
the trial
meanor convictions. Whether
finding
sec.
relates to
an admission
the defendant
may
973.12(1),
provides
that a sentence
which
prior convic-
qualifying
if
repeater
for a
enhanced
proved
by the defendant
are "admitted
tions
admit-
found that
The trial court
stated
Waupaca
in the
com-
alleged
ted the
the statements
plea and
of his no contest
plaint by virtue
plea.
of that
entry
his
surrounding
and answers
that the
court's determination
affirming
In
the trial
an admission for
constituted
plea
no contest
973.12(1), Stats.,
appeals
the court of
purposes of sec.
Ellsworth,
Ellsworth,
Finally, argues this case is con- the defendant Farr, 651, 350 N.W.2d State v. 119 Wis. 2d trolled (1984). Farr, and his the defendant we held that 640 attorney alleged, previous conviction
did not admit the attorney though failed and his the defendant even prosecu- object trial of the and actions at to statements regarding prior conviction; and trial court tor attorney trial his contributed defendant being understanding sen- court's attorney repeater; his defendant and as a tenced *12 obviously convic- had knew that the defendant being recognized sentenced as he was that tion and repeater. We stated: by short of an admission circumstances fall
Those required by sec. prior convictions the defendant of by 973.12(1), may not statute admission Stats. The attorney, by but inferred nor made rather, specific by admission must be a direct may The trial court ask defendant defendant. question observing the defendant's crim- while direct was before him whether inal record specific particular date of a crime convicted on a done, felony. If that is the admission of which was a allowed the statute is satisfied. the defendant as Id. at 659-60. appeals argues that the court of find-
The defendant upon sort of "inference" ing of admission is based is, by Farr. That the defendant con- proscribed that is tends, in this case reveals no "direct and the record follows, by the defendant." It specific admission claims, appeals decision is the court defendant with established case law and so must be not accord reversed. persua- argument
We do not find the defendant's
Farr,
pleaded
guilty
that defendant
not
sive.
Thus,
ultimately
on which he
was sentenced.
Brozosky, Farr
that we follow Ellsworth and
the extent
Farr,
distinguishable
insofar as he did not
is
because
plea,
not admit "all the facts well
submit a
did
merits,
Moreover, at the trial on the
the state
pleaded."
asking
in Farr in
the court to infer an admis-
effect
in this
silence. That
is not the situation
case.
sion from
Here,
plea,
no
viewed
the con-
the defendant's
contest
an affirmative
text of the record discussion constituted
complaint.
allegations
contained
admission
Moreover,
prescription
determining
Farr's
an admis-
necessarily exclusive. Farr said that
sion is not
”[t]he
question
may
trial court
ask the defendant
the direct
specific
. . . whether the defendant was convicted of a
done,
. . ..If
the defen-
crime
is
the admission of
Farr,
is satisfied."
The admission in this case was an affirmative one. It was direct specific, called for Farr. The trial judge expressly drew the defendant's attention to the repeater nature of the charge and to the fact that possible penalties the defendant facing might be enhanced, pursuant statute, to the repeater as a result of the defendant's being guilty pursuant found to his no plea. contest After informing the defendant of his consti- rights tutional repeatedly questioning him so as to ascertain that he was submitting plea freely, his volunta- rily intelligently, accepted the trial judge the defen- unequivocal dant's affirmative answer as to his under- standing of situation. light, colloquy his this into understanding of the meaning of the allegations facing he was can produced be said to have specific direct and admission.
This is conclusion consistent with that of numerous jurisdictions, state, other both clearly federal and hold that what is admitted or no contest is alleged charging all the material facts document. Service, See v. Imm. and Larios-Mendez Naturalization (9th 144, 1979) ("the 597 F.2d 146 Cir. material facts v. alleged complaint1'); the information Semet States, 1269, 1272 (10th 1970) ("all United 422 F.2d Cir. Matter charge"); material facts In the Colson, 1160, (D.C. 1979) (''all 412 A.2d 1164 material State, McCarther v. alleged by government"); facts 773, (1973) 152, ("every 211 fact Kan. 505 P.2d 774 State, (Mo. Robinson v. 491 315 alleged"); S.W.2d Cook, 1973) ("all charged1'); facts State *14 1984) ("the (N.D. alleged in the 487, 488 facts N.W.2d complaint"); Petrillo, v. 255 Pa. Commonwealth criminal (1978) ("all Super. 590, 225, the facts A.2d 594 386 information").7 alleged While the in the indictment or particularly a common cases is not issue raised such applied they state, to cases one, of that as the rule law purposes prior pertaining of for to admission statutory enhancement, is well established. sentence of Thompson, 618, S.E.2d 78
In 314 N.C. 336 State v. (1985), that the state failed to the defendant contended necessary aggravating of factors greater the existence establish impose imprisonment than the to "a term of presumptive 80. The had Id. at defendant sentence." pled alleged guilty of an one indictment that question. aggravating basis, the On that court factors alleged aggravating factor had been concluded that the holding plea sufficiently guilty established, that a "serves alleged in of the indictment as an admission all the facts process" finding of other criminal and that the defen- aggravating had factor virtue of his dant admitted the guilty plea. Id. at 624. in Worbetz v. Good same result was reached (1957), Super.
man, 391, 136 1, 47 A.2d where N.J. 9 plea guilty charge court held that a of to a that includes prior allegations of convictions "waivesthe need for proof by mal the State" of the convictions for Similarly, purposes. sentence enhancement State v. (1956), Super. Culver, 427, 123 383, 40 N.J. A.2d 385 guilty "plea clearly court held that the defendant's of Supreme States said 7 While United Court has that guilty plea of "is an admission all the elements a formal crimi States, 459, (1969), charge," McCarthy nal v. United U.S. 466 394 plea necessarily guilty has not or no it said contest only charge constitutes an admission of the elements of the charging not also other facts document.
510 amounted to an admission of guilt of the substantive offense, as well as to the incidental being accusation of criminal." habitual Jennings State, 40, Me. 64 A.2d (1949), result, the court reached the same finding submitting the defendant "formally, sol- emnly voluntarily admitted jury all that a trial could achievé," possibly respect with and the repeater allegation included the indictment. Moreo- ver, there seems to be no case law from any jurisdiction that holds to the contrary where, under circumstances case, in this judge fully trial expressly informed plea- defendant that his of guilty or nolo contendere *15 subjected the defendant to penalties enhanced because of his alleged repeater status.
The position is incredible it insofar as argues that he had expect reason to despite his no plea, contest the state still required prove was to the existence prior of the convictions before he could be repeater. sentenced as a Clearly, the defendant knew his plea would constitute an prior admission of his convic- tions. The defendant fully was expressly and informed that his him plea no contest subject would penal- to the prior ties to which his consequent convictions and repeater status him rendered liable. judge The stated to him explicitly subject that he was to sentencing as a repeater upon a finding guilty. of The judge inquired as to the defendant's understanding of the situation. The record shows that the defendant was fully aware of the potential consequences of pleading no contest. He never- theless chose plea. to enter a no freely, contest He did so voluntarily and intelligently. Presumably, he so did honestly because he knew allegations prior the as to his convictions to be true and because he considered it futile require to proof by prosecution. the prohibits
Nothing
a trial court from
in the statutes
guilty
accepting plea
a
of no contest or
as an admission
alleged
prior
971.09,
in the action. Section
of
plea
accept
guilty
Stats.,
trial court to
of
or no
allows a
applies for
consolidation
where the defendant
contest
pur-
case,
of
cases.
the circumstances
this
of
Under
poses
973.12,
of sec.
the defendant's
of no contest
by the
of all
constituted an
defendant
admission
including
pertaining
action,
in the
those
to
facts
convictions.
challenge
present
defendant
free
any
sentencing hearing
at
to rebut
evidence
allegations in
factual
the indictment that could be used
"repeater provision."
presented
He
to substantiate the
challenged
evidence
never
the fac-
no such rebuttal
allegations
question. Accordingly,
judge
the trial
tual
finding
was correct in
that the defendant had admitted
allegations
"repeater provision."
in the
In
contained
may
guilty
future,
no
it
his
or
contest
e.g.,
judge
admission,
if
not
does
would
constitute
judge
questioning
did the
here so as
not conduct the
understanding
meaning
ascertain the defendant's
consequences
plea.
potential
such a
such a
pled
case,
has
where the defendant
not
case
might
charge,
judge
trial
seek an
instead
specifically prescribed in Farr. If
such as that
admission
*16
whatsoever,
no
the state
the defendant makes
admission
required
provide proof
by
973.12, Stats.,
is
as to
sec.
repeater
alleged as
order for the
status
repeater.
court
trial
to sentence
defendant
a
that,
We conclude
the circumstances of this
under
plea
case,
a
com-
or no contest to
criminal
of.
prior
plaint containing
"repeater provision" alleging
512
constitutes,
973.12, Stats.,
conviction
under sec.
admission
prior
defendant of such
conviction so
prove
state need not
such
conviction for
the.
purposes of sentence enhancement
according to sec.
939.62. While the
approach
circumstances here
the abso-
lute bare minimum necessary
admission,
for a valid
they
nevertheless are sufficient.
"
respect
With
issue,
to the second
we note that
'the
plea
essential characteristic of a
of nolo contendere is
"
it cannot be
collaterally
used
as an admission.'
State,
Cross v.
593, 599,
45 Wis. 2d
We have held that the effect of sec.
is
to work a
charges
pleas.
consolidation
Peterson
State,
370, 376, 378,
54 Wis. 2d
The trial of by entering single disposing tion occurred judgment Waupaca county Outagamie and the both the charge. legal effect of a consolidation such reasonably been described as follows: has term, 'consolidation,' legal used
The word as a meaning. . clear and .. The consolida- has a definite process merging is of or of actions at law 'the two tion court, by done to more actions into one order expenses.' Wagnalls litigation Funk and and save (1921 563, Dictionary In ed.) Bonv. New Standard Diet., 1, 621, following vol. definitions are Law one, given: unite 'Consolidate —To into distinct parts thing. general to things or of a sense unite body . . into one mass or ..' 'Consolidate —To unite one, thing parts thing. In a gen- into distinct of body . ..' into one mass or . 'Con- eral sense unite has solidation of actions been defined combi- as of actions into one. of nation several Consolidation creation one out two or actions means the of more reasonably might brought as one.' have been 1936), Wilson, 109, 114 (Ga. 1 O'Malley citing v. 85 S.E. Gilchrist, 127, 121, 309, 121 Harrigan 99 C.J. Wis. (1904). 909 N.W.2d McRae, 249,
In Allen v. 100 12 Wis. N.W. (1904), upon "to the effect this court was called ascertain actions the trial consolidation" three ordered [a] court. We stated: merge
The effect of order this three prose- into actions one which should entitled By cuted as ordered the court. order these this another, superseded by were were actions thus independent separate terminated actions. After there is such consolidation [Citations omitted.] parties suit but one between all the included *18 upon consolidation, order of which trial must result finding judgment. in one and one pur- case, In this when the consolidation took effect pleadings 971.09, Stats., suant to sec. the various essen- tially single They were fused into a action. were no longer independent separate Naturally, any and actions. defenses or admissions should be in treated a like man- pertaining Accordingly, ner, i.e., as to the entire action. plea charge originating no contest to the Waupaca county plea, place subsequent in took —which having to the be consolidation—must considered as been single having in rendered action and not as been made proceeding pro- in a collateral such that it would be by Cross, Thus, scribed Suick Lee. we hold that the prior defendant's admission of the convictions that plea resulted from his no contest respect was effective with charge originating Waupaca both to the in originating Outagamie county. in the one correctly is, That the trial court found the defendant a "repeater" as to each of the two convictions and thus subject to sentence enhancement on each of them. This application in
the admission inherent the defendant's no contest does not constitute "collateral use" of plea. hopes, Whatever were the defendant's initial expectations "application or beliefs when he initiated his resulting produced consolidation," for consolidation very action, was but one the effect of which at least strongly suggested McRae, in Allen Wis. 246. which,
The consolidation resulted one action action, admitted to the for the entire repeater. him that rendered His no contest originating Waupaca county charge was to the proceeding his admis- not made a collateral such that respect not be effective with to the sion would repeater plea county. Outagamie originating properly county charge Waupaca for sen- used the tencing purposes Outagamie same consolidated They through county charge. one consolidation were case. respect issue, reverse
Thus, the second we with appeals its order that action court of resentencing Outagamie purposes on remanded county charge. appeals
By of the court of Court.—The decision is reversed. *19 (concurring). ABRAHAMSON, J. I
SHIRLEY S. appeals agree the court of should be that the decision of sentencing judgment and the circuit court's reversed affirmed. should be provides combining proceedings 971.09 for
Section , when the defendant enters a in two or more counties charges. opinion to all As a result of this charge statutory requirement guilty plea of a to each is (1) by guilty plea charge if satisfied a not to a the defen- (majority op. is dant tried and convicted at (2) 501), by plea charge (majority a of no contest to a 6). op. note opinion
Furthermore, as result of this and our opinion State, 370, 195 Peterson 43 Wis. 2d N.W.2d (1972), procedure set forth sec. 971.09 need contrary case, 971.09, In this followed. to sec. not application proceedings defendant's to combine was exe Outagamie county Waupaca county cuted in after attorney entry district consented to the guilty Outagamie county. Waupaca The dis attorney trict never consented to the defendant's enter plea. ing Outagamie county a no contest district attorney required by file, 971.09, failed to as sec. an amended information listing charges all and failed to send, 971.09, required by sec. information amended Waupaca attorney district before the latter executed his consent. suspect
I procedural requirements of sec. See, 971.09 are not met substantial number cases. e.g., Tatzel, State v. unpublished No. 90-2178-CR-NM (Wis. slip op. App. Perhaps Ct. Dec. 28,1990). proce steps impractical. dural set forth sec. 971.09 are longer says Because sec. 971.09 no means it what says means, (secs. 13.83, it I suggest legislature what 13.93(2)(d), 1987-88) judicial might Stats. or the council possible wish to examine sec. revision. .971.09