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COURT OF APPEALS DECISION DATED AND RELEASED March 4, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1583
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JERMAINE L. O'CONNER,
Defendant-Appellant.
APPEAL from orders of
the circuit court for Milwaukee County:
ELSA C. LAMELAS, Judge. Affirmed.
CURLEY,
J. Jermaine L. O’Conner, pro se, appeals from two orders
denying his motions filed pursuant to § 974.06, Stats., arising out of his November 1991 judgment of
conviction for endangering safety by use of a dangerous weapon contrary to §
941.20, Stats. (1989-90). He raises essentially two issues for review:
(1) whether his “Sixth Amendment Rights were violated, therefore denying him
the effective assistance of counsel;” and (2) whether the trial court erred in
accepting his guilty plea. This court concludes that the trial court lacked
subject matter jurisdiction to hear his motions because he was no longer “a
prisoner in custody under sentence of a court” within the meaning of §
974.06(1).[1] Accordingly, the orders denying his motions
are affirmed, albeit for a different reason than that expressed by the trial
court.[2]
On November 15, 1991,
O’Conner pleaded guilty to one count of endangering safety by use of a
dangerous weapon arising out of an incident in which he intentionally pointed a
handgun at another person. On that same
day, O’Conner was sentenced to 60 days incarceration consecutive to a two-year
prison term he was already serving.
On March 4, 1996,
O’Conner, while in federal custody at the Lompoc Federal Correctional
Institution in California, filed a motion pursuant to § 974.06, Stats., “to strike his prior
conviction.” The trial court reviewed
the motion and denied it, concluding that O’Conner had “failed to assert any
grounds warranting relief.” O’Conner
then filed a motion for reconsideration that the trial court also denied.
This court concludes
that the trial court erred when it decided O’Conner’s motion on the merits
because the trial court did not have subject matter jurisdiction to review the
motions. Under § 974.06(1), only a “prisoner in custody under sentence of
a court” satisfies the prerequisites for the vesting of subject matter
jurisdiction for a § 974.06 proceeding.
See State v. Bell, 122 Wis.2d 427, 428‑31, 362
N.W.2d 443, 444-45 (Ct. App. 1984).
Moreover, for the trial court to have jurisdiction, the prisoner must be
in custody under the sentence of “the sentencing court which imposed the
sentence under attack.” Id.
at 429, 362 N.W.2d at 444. O’Conner’s
motion was filed nearly five years after the judgment of conviction was
entered. At the time he filed the
motion, he had already served the sentence for his conviction on the
endangering safety by use of a dangerous weapon charge. Accordingly, he was no longer in custody
under the sentence he was attacking in his motions. The trial court lacked subject matter jurisdiction and should have
dismissed O’Conner’s motions.
Nonetheless, because the trial court correctly entered orders denying
the motions, this court affirms.
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Section 974.06(1), Stats., provides:
Postconviction procedure. (1) After the time for appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court or a person convicted and placed with a volunteers in probation program under s. 973.11 claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.