PUBLISHED OPINION
Case No.: 95-1673-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN J. TOBEY,
Defendant-Appellant.
Submitted on Briefs: February 5, 1996
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: March 6, 1996
Opinion Filed: March 6, 1996
Source of APPEAL Appeal
from a judgment and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Fond du Lac
(If "Special", JUDGE: JOHN W. MICKIEWICZ
so indicate)
JUDGES: Anderson,
P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the brief of Kraig
A. Byron of Grant Law Offices of Waupun.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general and Charles D. Hoornstra, assistant
attorney general.
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COURT OF APPEALS DECISION DATED AND RELEASED MARCH 6, 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. 95-1673-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN J. TOBEY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Fond du Lac County: JOHN W. MICKIEWICZ, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
ANDERSON, P.J. Steven
J. Tobey appeals from a judgment of the trial court and an order denying
postconviction relief. We conclude that
Tobey's notice of intent to pursue postconviction relief was untimely. Accordingly, we affirm the judgment and the
order of the trial court.
A criminal complaint was
filed against Tobey alleging that he intentionally received stolen property,
contrary to § 943.34(1)(c), Stats. Tobey entered a plea of no contest to the
charge. In October 1993, he was
convicted, placed on probation and ordered to pay a fine, court costs and
restitution. Tobey's probation was
subsequently revoked and he was sentenced to nine months in jail to be served
under the Huber law beginning May 3, 1995.[1]
Tobey filed a notice of
intent to pursue postconviction relief on May 10, 1995. The motion for postconviction relief was
filed on May 22, 1995, alleging that he was not adequately advised of his right
to legal counsel when his plea of no contest was received in October 1993 and
that he did not voluntarily and intelligently waive his right to counsel. The court denied the motion, stating that it
was untimely under Rule
809.30(2), Stats., and that there
was no merit to the claims stated in the motion. Tobey appeals the trial court's judgment and order.
Tobey argues that his
motion for postconviction relief was timely under Rule 809.30, Stats. He states that he filed his motion for
postconviction relief on the basis of the court's May 2, 1995, sentencing where
it imposed nine months in the county jail.
Tobey argues: “Applying the
statutory definition of sentencing to the facts presented herein, it is clear
that the sentence imposed by the trial court on May 2, 1995 constitutes a
‘sentencing’ from which the appellant is entitled to appeal under § 809.30(2).” In contrast, the State argues that Tobey did
not give notice within twenty days of sentencing on October 26, 1993. Tobey filed the notice of intent to pursue
postconviction relief on May 10, 1995.
Whether Tobey timely
filed a notice to pursue postconviction relief requires the interpretation of a
statute to a set of facts. This is a
question of law that we review de novo.
See K.N.K. v. Buhler, 139 Wis.2d 190, 199, 407
N.W.2d 281, 286 (Ct. App. 1987).
Rule
809.30, Stats., governs the
procedure regarding postconviction motions in felony cases. It provides in relevant part: “Within 20 days of the date of sentencing,
the defendant shall file in the trial court and serve on the district attorney
a notice of intent to pursue postconviction relief.” Rule 809.30(2)(b). The term “sentencing” is defined as “in a
felony or misdemeanor case, the imposition of a sentence, fine or
probation.” See Rule 809.30(1)(b).
We conclude that Tobey
lost the right to challenge the denial of counsel under the time limits of Rule 809.30, Stats. Under Rule 809.30(2)(b), a notice of intent
to pursue postconviction relief must be filed within twenty days of
sentencing. According to Rule 809.30(1)(b), sentencing in a
felony case includes the imposition of probation. Here, Tobey raised issues in his motion for postconviction relief
that should have been addressed after the 1993 conviction and sentencing. Tobey chose to begin serving his probation
without objecting to the events surrounding his 1993 conviction. Therefore, he cannot now raise these issues
because he is dissatisfied with the outcome of his sentencing after probation
revocation. In order to have been
timely, Tobey should have filed the notice of intent to pursue postconviction
relief within twenty days of the original sentencing which occurred in October
1993.
Because we conclude that
Tobey's notice of intent to pursue postconviction relief was untimely, we need
not reach his other appellate issue.
By the Court.—Judgment
and order affirmed.