COURT OF APPEALS DECISION DATED AND RELEASED March 12, 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. 95-2711-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MAZEN JAWDET JABER,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
KITTY K. BRENNAN, Judge. Reversed
and cause remanded.
FINE,
J. Mazen Jawdet Jaber appeals from the trial court's order
denying his motion, pursuant to § 971.08(2), Stats., to vacate the criminal judgment against him. The State concedes error, and joins in the
defendant's request to remand for an evidentiary hearing. See State v. Issa, 186
Wis.2d 199, 211, 519 N.W.2d 741, 746 (Ct. App. 1994). We agree, reverse, and remand.
Section 971.08, Stats., provides, as material here:
Pleas of guilty and no contest;
withdrawal thereof. (1)
Before the court accepts a plea of guilty or no contest, it shall do all of the
following:
(a)
Address the defendant personally and determine that the plea is made
voluntarily with understanding of the nature of the charge and the potential
punishment if convicted.
(b)
Make such inquiry as satisfies it that the defendant in fact committed the
crime charged.
(c)
Address the defendant personally and advise the defendant as follows: “If you are not a citizen of the United
States of America, you are advised that a plea of guilty or no contest for the
offense with which you are charged may result in deportation, the exclusion
from admission to this country or the denial of naturalization, under federal
law.”
(2) If a court fails to advise a
defendant as required by sub. (1)(c) and a defendant later shows that the plea
is likely to result in the defendant's deportation, exclusion from admission to
this country or denial of naturalization, the court on the defendant's motion
shall vacate any applicable judgment against the defendant and permit the
defendant to withdraw the plea and enter another plea. This subsection does not limit the ability
to withdraw a plea of guilty or no contest on any other grounds.
The
trial court denied Jaber's motion because it pegged the motion as one brought
under § 974.06, Stats., and ruled
that the motion was not timely because Jaber was no longer in custody. See § 974.06(1), Stats. (a defendant must be “in
custody” or in a “volunteers in probation program” to challenge the
constitutionality of his or her sentence).
The clear language of §
971.08(2), Stats., establishes
the event that triggers a defendant's motion under that section as the time
when the defendant is able to “show[]” that “the plea is likely to result in
the defendant's deportation, exclusion from admission to this country or denial
of naturalization.” A common sense view
of this provision is that the defendant's time to make the motion should not be
cut off before he or she has discovered that he or she is a “likely” candidate
for deportation or the other consequences identified in § 971.08(2),
merely because that discovery comes after the defendant is released from
custody or the “volunteers in probation program.” Accordingly, we reverse the trial court's order, and remand for
further proceedings.[1]
By the Court.—Order
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.