COURT OF APPEALS DECISION DATED AND RELEASED November 2, 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. 95-1555-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN EX
REL.
SUSAN C.
LULLING-PORTER,
Plaintiff-Appellant,
v.
WISCONSIN DEPARTMENT
OF
CORRECTIONS,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Dane County:
RICHARD J. CALLAWAY, Judge. Affirmed.
Before Dykman, Sundby,
and Vergeront, JJ.
PER
CURIAM. Susan Lulling-Porter appeals from an order dismissing
her petition for a writ of habeas corpus.
The dispositive issue is whether habeas corpus is available to her. We conclude that it is not, and therefore affirm.[1]
In 1993, Lulling-Porter
pled no contest to five counts of failing to provide proper food and drink to
confined animals, § 951.13, Stats. The trial court sentenced her to three
years' probation, commencing in July 1993.
She later filed a motion to withdraw the plea on grounds that the trial
court inaccurately described the elements of the charge at the plea
hearing. While acknowledging that
mistake, the trial court denied the motion because Lulling-Porter failed to
show that she consequently misunderstood the nature of the charge.
In February 1995,
Lulling-Porter filed but later voluntarily withdrew a § 974.06, Stats., motion alleging that she pled
unknowingly and involuntarily because she did not understand the charge against
her. She then filed her habeas corpus
petition, relying on the same grounds to void the judgment.
The trial court granted
the Department of Corrections' motion to dismiss the petition. The court held that the issue raised had
already been litigated and that voiding a plea is not a remedy in habeas corpus
proceedings. This appeal ensued.
Lulling-Porter may not
use habeas corpus to challenge her conviction.
The purpose of § 974.06, Stats.,
is to afford an all-encompassing remedy for defendants challenging their
convictions, supplanting habeas corpus and other special writs. State v. Johnson, 101 Wis.2d
698, 701, 305 N.W.2d 188, 189 (Ct. App. 1981).
Section 974.06(8), Stats.,
plainly sets forth that purpose by providing that one who is authorized to
apply for § 974.06 relief or has already done so may not obtain a remedy
under habeas corpus "unless it also appears that the remedy by
[§ 974.06] motion is inadequate or ineffective to test the legality of his
or her detention." Lulling-Porter
has not shown that a § 974.06 motion would be inadequate or ineffective to
challenge her plea.
Lulling-Porter points
out, however, that relief under § 974.06, Stats., is only available to "a prisoner in custody
under sentence of a court."
Section 974.06(1), Stats. She contends that as a probationer, she is
not a "prisoner in custody."
We disagree. Section 974.06 is
taken directly from 28 U.S.C. § 2255.
Johnson, 101 Wis.2d at 701, 305 N.W.2d at 189. Federal courts have consistently ruled that
a probationer is a "prisoner under custody" for the purpose of using
its provisions. See United
States v. Essig, 10 F.3d 968, 970 n.3 (3d Cir. 1993). See also State v. Bell,
122 Wis.2d 427, 431, 362 N.W.2d 443, 445 (Ct. App. 1984) (one is no longer a
"prisoner in custody" after release from probation).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.