|
COURT OF APPEALS DECISION DATED AND RELEASED October 30, 1996 |
NOTICE |
|
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. 96-1746-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN E. LOWTHER III,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Winnebago County: WILLIAM H. CARVER, Judge. Judgment affirmed in part and reversed in
part; order reversed and cause remanded with directions.
SNYDER, J. John
E. Lowther III, appeals from a judgment of conviction imposing an enhanced
penalty under § 939.62, Stats.,
and from a postconviction order denying his motion to vacate that portion of
his sentence. Lowther contends that the
repeater portion of his sentence was unsubstantiated by his admission or by
required proof.
The basic facts are undisputed. Lowther was convicted of one count of
battery contrary to § 940.19(1), Stats.,
a Class A misdemeanor. The criminal
complaint alleged that Lowther was subject to a penalty enhancement as a repeat
offender under § 939.62(1)(a), Stats.,
exposing him, inter alia, to three years incarceration if convicted of the
charge. Lowther pled no contest to the
battery charge, and the trial court dismissed two other misdemeanor charges at
the request of the State.[1] The trial court sentenced Lowther to prison
for a period of nine months, the maximum under a Class A misdemeanor, plus a
nine-month penalty enhancement.
The appellate issue
raised by Lowther is whether the trial court erred, as a matter of law, in
imposing the penalty enhancer under § 939.62, Stats. Lowther
contends that: (1) he did not
specifically admit to any prior convictions that support the sentence
enhancement, see State v. Farr, 119 Wis.2d 651, 659, 350
N.W.2d 640, 645 (1984), and (2) the State did not present proof of the alleged
prior convictions sufficient to support the enhancement. See State v. Koeppen,
195 Wis.2d 117, 127, 536 N.W.2d 386, 390 (Ct. App. 1995). The State has not responded.
Failure to file a
respondent's brief tacitly concedes that the trial court erred. State v. R.R.R., 166 Wis.2d
306, 311, 479 N.W.2d 237, 239 (Ct. App. 1991).
We accept the State's concession that Lowther was improperly sentenced
under the penalty enhancer provision and reverse the trial court order denying
the postconviction relief requested.
Accordingly, we remand and direct that the portion of Lowther's sentence
attributable to his alleged status as a repeat offender be vacated. The judgment in all other respects shall
stand as the law of the case.
By the Court.—Judgment
affirmed in part and reversed in part; order reversed and cause remanded with
directions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.