COURT OF APPEALS DECISION DATED AND RELEASED November 21, 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. 95-1297
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LARRY J. SPROSTY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Crawford County:
MICHAEL KIRCHMAN, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. Larry J. Sprosty appeals from a judgment committing
him as a sexual predator under chapter 980, Stats. Because we reject Sprosty's argument that
the trial court erred in failing to grant his substitution request, we affirm.[1]
In 1990, Sprosty was
found guilty and sentenced to five years' imprisonment for various sex
crimes. Two days before his scheduled
release, the State filed a timely chapter 980, Stats., petition alleging that Sprosty was a sexually violent
person. The day after the petition was
filed, Sprosty moved to substitute the judge under various statutes.[2]
As the State concedes,
the circuit court incorrectly held that Sprosty had no right of substitution
under chapter 980, Stats. However, if the trial court came to the
right result, but for the wrong reason, we will affirm. State v. Holt, 128 Wis.2d 110,
124-25, 382 N.W.2d 679, 687 (Ct. App. 1985).
We hold that Sprosty
waived his right to substitution by concurrently filing various motions
addressed to the merits. Under
substitution statutes a defendant may request a new judge only "before
making any motion." Asking for
relief by submitting motions "accede[s] to the trial jurisdiction of the
assigned judge." State ex
rel. Warrington v. Circuit Court, 100 Wis.2d 726, 730-31, 303 N.W.2d
590, 592 (1981).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Sprosty also argues that the trial court erred in failing to dismiss for the State's failure to allege the required criteria for a chapter 980, Stats., petition. Although Sprosty obtained a favorable federal district court habeas corpus petition to that effect at the time his brief was filed, the Seventh Circuit Court of Appeals later overturned that favorable ruling. After being so informed by the State, Sprosty withdrew his appeal on this issue.