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COURT OF APPEALS DECISION DATED AND FILED November 4, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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Appeal No.� |
Cir. Ct. No.� 2014CV147 |
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STATE OF WISCONSIN� |
IN COURT OF APPEALS |
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DISTRICT III |
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City of Kaukauna, ��������� Plaintiff-Respondent, ���� v. Grant R. Loescher, ��������� Defendant-Appellant. |
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����������� APPEAL from an order of the circuit court for Outagamie County:� JOHN A. DES JARDINS, Judge.� Affirmed.� �
�1������� HOOVER, P.J.[1] Grant Loescher appeals a circuit court order denying his motion to reopen and vacate his 1997 conviction for operating while intoxicated (OWI), first offense.� Loescher argues he was erroneously charged and convicted of first-offense OWI in 1997.� He contends he should have been charged with second-offense OWI as a matter of law, due to an existing 1992 OWI conviction.� He argues his 1997 conviction is void because the City of Kaukauna Municipal Court lacked subject matter jurisdiction over criminal second and subsequent OWI offenses. �We affirm.
�2������� The facts are undisputed. On April 16, 1992, Loescher was convicted of first-offense OWI in Dane County for a March 28, 1992 offense.� On April 16, 1997, Loescher was again arrested for OWI.� He was convicted a second time of first-offense OWI on April 29, 1997, this time in the Kaukauna Municipal Court.
�3������� On November 4, 2013, Loescher moved to vacate his 1997 OWI conviction in the Kaukauna Municipal Court.� Loescher argued his 1997 first-offense OWI conviction violated Wis. Stat. � 346.65(2), which delineates the escalating penalty scheme for violating the intoxicated driving statute.� The Kaukauna Municipal Court denied Loescher�s requests to reopen the 1997 case and vacate the judgment as void. �Loescher appealed to the Outagamie Circuit Court, which affirmed the denial to reopen.� He now appeals to this court.
�4������� Under Wis. Stat. � 346.65(2), a first-offense OWI is a civil violation punishable by forfeiture, whereas subsequent offenses within a ten-year period are exclusively criminal violations punishable by fines and imprisonment.� See County of Walworth v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682 (1982).� Loescher argues his 1997 offense was required by law to be charged as a criminal second-offense OWI.� Therefore, Loescher alleges, the municipal court�s judgment is void because the court did not have subject matter jurisdiction to convict him of a criminal OWI offense.� See City of Kenosha v. Jensen, 184 Wis. 2d 91, 99, 516 N.W.2d 4 (Ct. App. 1994).
�5������� However, Loescher aptly notes in his appellate brief[2] that when he was convicted in 1997, the applicable penalty provision actually had a five-year time period for the purposes of counting prior convictions that would trigger escalated charges and penalties.[3] This information, combined with our examina-tion of the record, leads us to conclude that this case can be resolved quite simply.� Wisconsin Stat. � 346.65(2c) (1995-96), provided �the 5-year � period shall be measured from the dates of the refusals or violations that resulted in the revocation or convictions.�� Loescher�s offenses, dated March 28, 1992 and April 16, 1997, narrowly fall outside the five-year time period.� As a result, Loescher was properly charged with first-offense OWI in 1997, and the Kaukauna Municipal Court had jurisdiction to adjudicate the charge.� Therefore, the judgment is valid.
����������� By the Court.�Order affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2011-12 versions unless otherwise noted.
[2] We only consider Loescher�s main brief, as he failed to file his reply brief on time. Accordingly, Loescher�s reply brief is stricken.
[3] In relevant part, the applicable Wis. Stat. � 346.65(2) (1995-96), provides:
Any person violating s. 346.63 (1): (a) Shall forfeit not less than $150 nor more than $300, except as provided in pars. (b) to (f). (b) Except as provided in par. (f), shall be fined not less than $300 nor more than $1,000 and imprisoned for not less than 5 days nor more than 6 months if the total number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 2 in a 5-year period. Suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.