COURT OF APPEALS DECISION DATED AND FILED May 27, 2009 David
R. Schanker 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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Appellant, v. Michael J. Lindholm,
Defendant-Respondent. |
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APPEAL
from a judgment of the circuit court for
¶1 BROWN, C.J.[1] On April 19, 2001, the
¶2 Lindholm was arrested on October 4, 2006. The officer wrote on the citation that it was for operating while intoxicated, fourth offense. He pled guilty to the charge of operating while intoxicated but filed a motion alleging that he should be sentenced for OWI, third offense, rather than an OWI, fourth offense.
¶3 In his brief to the court, Lindholm alleged the following: His brother used his identity in 1991 after
being pulled over for operating while intoxicated. In 1998, he was cited for OWI, third offense,
and found out for the first time that his brother had misappropriated his
identity. He raised the issue with the
¶4 The State filed a responsive brief arguing that Lindholm was mounting a collateral attack on his 1991 conviction and that collateral attacks are disallowed unless there is evidence that he had a right to an attorney and did not receive assistance. Since there was no such proof, the State contended that the collateral attack must fail. The State did not address issue preclusion in its brief. The Walworth county circuit court granted Lindholm’s motion and sentenced him for OWI, third offense. The State appeals.
¶5 Collateral attack has nothing to do with this case. In fact, Lindholm never collaterally
“attacked” the 1991 conviction. Rather,
he brought the matter of the 1991 conviction to the attention of the
¶6 This is pure issue preclusion. The doctrine of issue preclusion forecloses
relitigating an issue that was actually litigated in a previous proceeding
involving the same parties or their privies.
Masko v. City of
¶7 Here, the State of
¶8 On the matter of fundamental fairness, a judgment rendered by
a court having jurisdiction of the parties and the subject matter, unless
reversed or annulled in some proper proceeding, is not open to contradiction or
impeachment, in respect to its validity, verity or binding effect, by parties
or privies in any collateral action or proceeding, except for fraud in its
procurement. Zrimsek v. American Auto. Ins. Co., 8
By the Court.—Judgment affirmed.
This opinion will not be published in the official reports. 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) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.