PUBLISHED OPINION
Case No.: 94-2995
†Petition for
review filed.
Complete
Title
of
Case:STATE OF WISCONSIN
EX REL.
ALEXANDER L. JACOBUS,
Petitioner-Appellant,
v.
STATE OF WISCONSIN,
Respondent-Respondent.
Submitted
on Briefs: October 9, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: December 21, 1995
Opinion
Filed: December
21, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Monroe
(If
"Special" JUDGE: Michael
J. McAlpine
so
indicate)
JUDGES: Eich, C.J., Gartzke, P.J., and Dykman, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the petitioner-appellant the
cause was submitted on the brief of Alexander L. Jacobus, pro se
of Wilton.
Respondent
ATTORNEYSFor the respondent-respondent the
cause was submitted on the brief of James E. Doyle, attorney general and
William C. Wolford, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED December
21, 1995 |
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. 94-2995
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN EX REL.
ALEXANDER
L. JACOBUS,
Petitioner-Appellant,
v.
STATE
OF WISCONSIN,
Respondent-Respondent.
APPEAL
from an order of the circuit court for Monroe County: MICHAEL J.
MCALPINE, Judge. Reversed and cause
remanded with directions.
Before
Eich, C.J., Gartzke, P.J., and Dykman, J.
DYKMAN,
J. Alexander L. Jacobus appeals from
an order in which the trial court denied his petition for a writ of habeas
corpus. Jacobus was charged with
several crimes including three counts of bail jumping based solely upon his
consumption of alcohol, an act prohibited by the terms of his release
bonds. Pursuant to a plea agreement, he
entered no contest pleas to one of these charges and several others. Jacobus argues that his habeas
petition should have been granted because this conviction violates state policy
set forth in § 51.45(1), Stats.,[1]
which prohibits the State from criminally charging intoxicated or alcoholic
persons with consuming alcohol. We
agree with Jacobus and conclude that his conviction violates state policy. Accordingly, we reverse the court's order
and grant his habeas petition.
BACKGROUND
Over
a three-month period in 1992, Jacobus was charged with several crimes including
five counts of misdemeanor bail jumping.
Three of those counts were based upon his consumption of alcohol,
actions which his release bonds prohibited.[2] Jacobus entered into a plea agreement with
the State. He agreed to plead no
contest to one count of disorderly conduct, two counts of operating a motor
vehicle while intoxicated (OMVWI), and three counts of misdemeanor bail
jumping. Of those three counts of
misdemeanor bail jumping, only one was based solely upon his consumption of
alcohol. The State agreed to dismiss
the other two charges of misdemeanor bail jumping based solely upon his
consumption of alcohol. The trial court
imposed and stayed jail sentences, and placed Jacobus on probation.
Approximately
two years later, in October 1994, Jacobus was taken into custody and his
probation was revoked. That same month,
he filed a petition for a writ of habeas corpus in which he argued that
he should be released from incarceration because his bail jumping convictions
violated state policy set forth in § 51.45(1), Stats. The trial
court denied his petition. Jacobus
appeals.
DISCUSSION
Habeas
corpus tests the right of a
person to his or her personal liberty. State
ex rel. Dowe v. Circuit Court, 184 Wis.2d 724, 728, 516 N.W.2d 714,
715-16 (1994). It is an equitable doctrine
limited to those persons needing relief when the process or judgment upon which
the person is held is void. Id.
at 728-29, 516 N.W.2d at 716. A habeas
corpus petition requires us to examine whether a jurisdictional defect
affects the trial court's authority for the detention or imprisonment of a
person, or whether the court's order is unconstitutional. J.V. v. Barron, 112 Wis.2d
256, 261, 332 N.W.2d 796, 799 (1983).
To
determine whether Jacobus's judgment of conviction contravenes state policy against
criminally charging alcoholics or intoxicated persons with consuming alcohol,
we must construe § 51.45(1), Stats. Statutory interpretation presents a question
of law which we review de novo. State
ex rel. Frederick v. McCaughtry, 173 Wis.2d 222, 225, 496 N.W.2d 177,
179 (Ct. App. 1992). In construing a
statute, our purpose is to discern the legislature's intent and give it
effect. Id. We examine the statute's language, and,
absent ambiguity, it is our duty to give the language its ordinary meaning. Id. at 225-26, 496 N.W.2d at
179.
The
State initially contends that Jacobus has waived his right to contest his
incarceration because he entered no contest pleas. A plea of guilty or no contest, when knowingly and voluntarily
made, waives all nonjurisdictional defects and defenses. State v. Dietzen, 164 Wis.2d
205, 210, 474 N.W.2d 753, 755 (Ct. App. 1991).
Jurisdictional defects involve the trial court's personal jurisdiction
over the person of the defendant or the court's jurisdiction over the subject
matter of the proceeding. Id. Criminal subject matter jurisdiction
involves the power of a court to inquire into the charge of the crime, to apply
the law, and to declare the punishment.
Id. Subject matter
jurisdiction is derived from law and cannot be waived nor conferred by
consent. Id. at 210-11,
474 N.W.2d at 755. Indeed, a court does
not have subject matter jurisdiction over a nonexistent crime. Id. at 211, 474 N.W.2d at
755.
Jacobus's
claim, liberally construed, challenges the trial court's authority to enter a
judgment of conviction for actions that the legislature has expressly provided
cannot form the basis of a criminal charge.
His argument is essentially that the court lacked subject matter
jurisdiction to enter the judgment that it did. We agree with Jacobus and conclude that a defendant cannot waive
a defect with regard to a guilty plea for an act which is not a crime. Accordingly, Jacobus has not waived his
right to contest his incarceration.
Turning
to the merits of Jacobus's appeal, he contends that his conviction conflicts
with § 51.45(1), Stats.,
which provides that alcoholics and intoxicated persons may not be subjected to
criminal prosecution because of their consumption of alcohol, but should be
treated instead. He argues that the
plain language of § 51.45(1) prohibits the State from criminally charging
an alcoholic or intoxicated person with consuming alcohol. Because three of the five bail jumping
charges were based solely upon Jacobus's consumption of alcohol, the only
factual basis for the charges is that he was intoxicated. This is exactly what § 51.45(1)
prohibits. This interpretation of
§ 51.45(1) does not prevent the State from prohibiting alcohol consumption
as a condition of bail, parole, or probation.
The penalty, however, can only be a revocation of that status and not a
separate criminal charge.
The
State responds that the legislative history of § 51.45(1), Stats., supports its position that
Jacobus's charges do not contravene state policy. This history explains that § 51.45(1) does not affect present
laws against driving while intoxicated and other crimes committed by persons
under the influence of alcohol. See
also § 51.45(17)(a).[3] The State also argues that the statute was
intended to absolve alcoholics from criminal prosecution based solely upon
their consumption of alcohol but does not provide a defense against prosecution
for violation of other laws committed while under the influence. But three of Jacobus's bail jumping charges
were based solely upon his consumption of alcohol. That the State identified the offense as "bail jumping"
rather than "intoxication" or "drunkenness" is
irrelevant. Had Jacobus committed a
crime while he was intoxicated, § 51.45(1) would not be a defense.
We
conclude that the trial court's order must be reversed and the petition for a
writ of habeas corpus granted.
The three bail jumping charges based solely on his consumption of
alcohol will be dismissed. Since
Jacobus negotiated the plea agreement with the belief that he would be
subjected to eight criminal charges and now he faces only five, we will allow
him to withdraw the entire plea agreement.
Thus, the court must schedule a new trial on the remaining charges.
By the Court.—Order reversed and cause remanded with directions.
[1] Section 51.45(1), Stats., provides:
"It is the policy of this state that alcoholics and intoxicated
persons may not be subjected to criminal prosecution because of their
consumption of alcohol beverages but rather should be afforded a continuum of
treatment in order that they may lead normal lives as productive members of
society."