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COURT OF APPEALS DECISION DATED AND FILED January 30, 2013 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.� 2012CT2 |
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STATE OF WISCONSIN� |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Wisconsin, ��������� Plaintiff-Respondent, ���� v. James A. Krahn, ��������� Defendant-Appellant. |
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����������� APPEAL from a judgment of the circuit court for Sheboygan County:� l. edward stengel, Judge.� Affirmed.�
�1������� REILLY, J.[1] James A. Krahn appeals his conviction for second-offense operating a motor vehicle while intoxicated on the grounds that it violated his constitutional right to not be tried twice for the same crime.� We affirm his conviction as a previous conviction as a first-time offender was void for want of subject-matter jurisdiction, and therefore, his conviction as a second-time offender did not violate his constitutional right.�
�2������� Krahn was arrested on September 24, 2011, and was subsequently charged with first-offense operating a motor vehicle while intoxicated and operating with a prohibited blood concentration (OWI).� At the time of this arrest, Krahn was awaiting trial in Plymouth municipal court for first-offense OWI as the result of an arrest on August 21, 2011.� Krahn pled guilty and was convicted in the Plymouth case on October 11, 2011.� On November 2, 2011, Krahn appeared in Sheboygan County Circuit Court for the September 24, 2011 incident and again pled guilty to first-offense OWI.� Following this second conviction for first-offense OWI, the Sheboygan county district attorney�s office successfully moved the circuit court to reopen the case and vacate the conviction.� Krahn was then charged in this action with second-offense OWI as a result of the September 24, 2011 arrest.�
�3������� Krahn moved the court to dismiss the second-offense OWI charges on the grounds that the constitutional bar against double jeopardy prevented the district attorney from charging him with second-offense OWI when he had been convicted of first-offense OWI for the same incident.� The court rejected Krahn�s motion, finding that the previous circuit court lacked jurisdiction to convict Krahn for first-offense OWI.� Krahn subsequently pled guilty to second-offense OWI as a result of the September 24, 2011 arrest.� Krahn appeals.�
�4������� The United States and Wisconsin Constitutions forbid placing persons �twice in jeopardy of punishment� for the same offense (i.e., �double jeopardy�).� State v. Henning, 2004 WI 89, �16, 273 Wis. 2d 352, 681 N.W.2d 871.� �The Double Jeopardy Clause does not necessarily act as a bar to a second trial for the same charge after conviction.�� Id., �19.� We independently review whether a retrial constitutes double jeopardy.� Id., �14.�
�5������� Krahn argues that as he already had been convicted in circuit court of first-offense OWI, which includes the same elements as second-offense OWI, his second-offense conviction constitutes double jeopardy under Blockburger v. United States, 284 U.S. 299 (1932).� Krahn�s position ignores well-settled precedent.
�6������� Wisconsin trial courts have no subject-matter jurisdiction over second or subsequent drunk driving offenses tried as first offenses contrary to Wis. Stat. �� 343.307 and 346.65(2)(am).� See Walworth Cnty. v. Rohner, 108 Wis. 2d 713, 721-22, 324 N.W.2d 682 (1982). �The orders and judgments of a court acting in excess of its jurisdiction are void and may be expunged by a court at any time.� State v. Banks, 105 Wis. 2d 32, 43, 313 N.W.2d 67 (1981).� Thus, any proceeding that tries a second-time OWI offender as a first-time offender contrary to the mandatory language of the drunk driving statutes is invalid and no jeopardy attaches to the resulting conviction.� See Rohner, 108 Wis. 2d at 722.� Krahn was properly convicted of second-offense OWI. �
����������� By the Court.�Judgment 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)(f) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.