COURT OF APPEALS DECISION DATED AND FILED May 24, 2011 A. John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT III |
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State of Plaintiff-Respondent, v. Kray A. Burkart, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 BRUNNER, J.[1] Kray Burkart, pro se, appeals a default judgment, convicting him of forfeiture harassment. Burkart alleges the circuit court lacked subject matter and personal jurisdiction, and the complaint violated his constitutional rights. We affirm.
BACKGROUND
¶2 On September 17, 2009, the State charged Burkart, a
¶3 In January 2010, Burkart filed a motion asserting the court lacked jurisdiction because there is a Minnesota child custody order between himself and the victim and the complaint was “unconstitutionally vague” and “subject[ed him] to Double Jeopardy.” At the motion hearing, the court determined it had jurisdiction over the case, the complaint was specific as to the offense, the dates, and location of the offense, and Burkart was in possession of all the police reports and other discovery the State would use at trial.
¶4 In April, Burkart failed to appear at a scheduled hearing. The State moved for a default judgment, and the court defaulted Burkart. The court subsequently denied Burkart’s motion to reopen.[2]
DISCUSSION
¶5 On appeal, Burkart argues the court lacked subject matter and
personal jurisdiction, and the complaint was unconstitutional.[3] Burkart does not challenge the default
judgment or the order denying his motion to reopen. Although we note Burkart should have appealed
the order denying his motion to reopen, in the interest of judicial economy, we
will address Burkart’s appeal on the merits.
¶6 Burkart first asserts the court lacked subject matter
jurisdiction. Subject matter
jurisdiction refers to a court’s ability to hear a particular type of
case.
¶7 Burkart next argues the circuit court lacked personal
jurisdiction because he was not properly served and his summons was
deficient. A defense of lack of personal
jurisdiction is waived if not raised in a defendant’s answer, in a motion filed
before the answer, or in a responsive pleading.
Wis. Stat.
§ 802.06(2), (8)(a). Additionally,
where an appearance is made and relief is sought on other matters, a defendant’s
objection to lack of personal jurisdiction is waived. Artis-Wergin v. Artis-Wergin, 151
¶8 Burkart, prior to contesting personal jurisdiction, appeared before the court on three occasions and wrote to the court asking for the charge to be dismissed, asking permission to appear by phone, requesting a jury trial, requesting discovery, and asking for a gag order between the Marathon County assistant district attorney and a Minnesota attorney handling his child custody matter. These actions show Burkart submitted himself to the court’s jurisdiction.
¶9 Burkart also contends that the complaint was
unconstitutionally vague and ambiguous, and prevented him from preparing a
defense. From what we can discern, it
appears this allegation stems from his arguments that: (1) the complaint did
not identify the victim; and (2) the State refused at the motion hearing to
limit the acts it intended to use to prove harassment, opting instead to use
all the acts outlined in the police reports that occurred within the time
period specified in the complaint. We
note the record reveals Burkart knew the victim’s identity—he wrote a letter to
the court identifying the victim and the State confirmed the victim’s identity
at the motion hearing. Further, Burkart’s
argument that the State must limit the evidence it intends to offer is
undeveloped, and we will not consider it.
¶10 Finally, Burkart asserts the complaint violated his right against
double jeopardy because “the action is based on police reports from identical
or similar civil actions.” Other than
his sweeping contention, he offers no support for this argument. From the record, it appears Burkart’s double
jeopardy argument stems from his contention that the criminal complaint issued
against him was dismissed without prejudice and reissued as a forfeiture. Jeopardy does not attach to an offense
dismissed without prejudice. See Wis.
Stat. § 972.07.
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). All references to the Wisconsin Statutes are
to the 2009-10 version unless otherwise noted.
[2] The Honorable Glenn H. Hartley presided over the motion to reopen hearing.
[3] We
had difficulty following Burkart’s arguments because they are poorly developed
both factually and legally. Any argument
that we do not address is denied because it is inadequately briefed and lacks
any discernable merit. See State
v. Pettit, 171