COURT OF APPEALS DECISION DATED AND RELEASED December 12, 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. 95-0117
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN EX
REL.,
ALLEN J. THOMAS,
Petitioner-Appellant,
v.
STATE OF WISCONSIN,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Milwaukee County:
VICTOR MANIAN, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Allen J. Thomas appeals, pro se,
from an order dismissing his petition for coram nobis relief. The petition requested that his 1976 arson
judgment be vacated on the grounds that he had previously been acquitted of
this charge. He claims that the 1976
judgment violated his constitutional right against double jeopardy. Because Thomas failed to introduce any
evidence to show that he was previously acquitted of the identical charge, the
trial court reached the correct decision in dismissing his petition. Accordingly, we affirm.
I. BACKGROUND
In July 1976, Thomas
pled guilty to one count of arson, contrary to § 943.03, Stats.
The arson occurred on April 26, 1974.
He was sentenced to three years probation, but after violating the
conditions of his probation, his probation was revoked and he served eighteen
months. He is currently incarcerated on
an unrelated charge.
In December 1994, Thomas
filed a petition for coram nobis requesting that the 1976 judgment be
vacated. He claimed that he had been
acquitted on the same charge in 1975 and if the trial court would have examined
the 1975 record, it would not have allowed Thomas to be convicted of the arson
charge in 1976. The trial court
presiding over the coram nobis petition dismissed the petition. The trial court treated the coram nobis
petition as a motion pursuant to § 974.06, Stats., because of its mistaken belief that coram nobis relief
was no longer available. Accordingly,
the trial court dismissed the petition because § 974.06 relief is only
available when a defendant is in custody on “the original criminal action.” Although Thomas was in custody at the time
he filed his petition, he was imprisoned on an unrelated charge.
Thomas appeals from the
order dismissing his petition.
II. DISCUSSION
We affirm the trial
court because it reached the right result, although its reasoning was incorrect.[1] See State v. Holt, 128
Wis.2d 110, 124, 382 N.W.2d 679, 687 (Ct. App. 1985). The trial court correctly dismissed Thomas's
petition, however, because Thomas failed to provide any evidence to prove that
he was acquitted in 1975 of the same arson charge on which he was convicted in
1976.
A writ of error coram
nobis is a common law remedy of very narrow scope. Jessen v. State, 95 Wis.2d
207, 213, 290 N.W.2d 685, 688 (1980).
It “encompasses only errors of fact outside the record which are unknown
to the trial court and which if known would have prevented the entry of
judgment.” State v. Kanieski,
30 Wis.2d 573, 576, 141 N.W.2d 196, 198 (1966). A trial court should grant a coram nobis petition only if
“it is satisfied that the verified petition on its face shows sufficient
grounds for the issuance of the writ.” Houston
v. State, 7 Wis.2d 348, 353, 96 N.W.2d 343, 346 (1959). Thomas failed to satisfy this
requirement. He did not submit any
evidence to demonstrate that he was acquitted on the identical arson charge in
1975, and the record does not contain any evidence to support his contention. His conclusory allegation alone is
insufficient to satisfy his burden.
Further, there is no evidence in the record that supports his claim. Accordingly, the trial court was correct to
dismiss his petition.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The trial court applied the wrong reason for dismissing Thomas's petition. His petition should not have been treated as a § 974.06, Stats., motion because the common law remedy of a writ of error coram nobis still exists despite the fact that the Wisconsin legislature abolished the corresponding statutory right. See Jessen v. State, 95 Wis.2d 207, 213, 290 N.W.2d 685, 688 (1980).