COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 27, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2801-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN WILLIAM SCRIVNER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Pierce County:
DANE F. MOREY, Judge. Affirmed.
CANE, P.J. After pleading guilty or no contest to the
charges of third offense operating while intoxicated, third offense operating
after revocation with the habitual traffic offender enhancer set forth in §
351.08, Stats., and possession of
drug paraphernalia, the trial court ordered that John Scrivner forfeit $1,796
and serve 180 days in jail on the OWI conviction. When imposing this sentence, the trial court followed the
judicial district's sentencing guidelines for OWI offenses. With respect to the OAR conviction, the
trial court ordered a fine of $1,000 and thirty days in jail concurrent with
the OWI charge. Relying on § 351.08,
the court then added a $100 fine and thirty consecutive days in jail for the
habitual traffic offender enhancement relating to the OAR conviction.
Scrivner makes two
arguments on appeal. First, he cannot
be sentenced for additional jail time with respect to the habitual traffic
offender (HTO) enhancer if he is not given the maximum sentence on the
underlying OAR conviction. Therefore,
he reasons the additional sentence of thirty days in jail and the $100 fine
should be vacated. Second, the use of
the judicial district sentencing guidelines on the OWI conviction violates the
separation of powers doctrine. These
arguments are rejected and the sentences are affirmed.
The OAR, third offense, provides for a
penalty of a fine of not less than $1,000 nor more than $2,000, and
imprisonment not less than thirty days mandatory and not more than nine months.
The relevant part of §
351.08, Stats., provides:
Any
person who is convicted of operating a motor vehicle in this state while the
revocation under this chapter is in effect shall, in addition to any penalty
imposed under s. 343.44, be fined not to exceed $5,000 and imprisoned not
to exceed 180 days. (Emphasis added.)
Scrivner contends that
under State v. Harris, 119 Wis.2d 612, 350 N.W.2d 633 (1984),
imposition of a term of imprisonment less than the maximum authorized by
statute on the underlying offense precludes application of a repeater statute
in sentencing. When an excess sentence
is imposed, the excess portion is void.
State v. Zimmerman, 185 Wis.2d 549, 559, 518 N.W.2d 303,
306 (Ct. App. 1994).
Scrivner's reliance on Harris
is misplaced. In Harris,
the supreme court concluded that under the specific language of § 939.62, Stats. (increased penalty for habitual
criminality), the statute was not applicable to a defendant's sentence unless
the maximum sentence is imposed for the crime for which the defendant is
convicted. Id. at 616-17,
350 N.W.2d at 636. On the other hand,
here we are dealing with the motor vehicle code and not the repeater statute of
§ 939.62. Where there is specific
language in a statutory chapter, that language shall control rather than
general language from another chapter. State
v. Taylor, 170 Wis.2d 524, 529, 489 N.W.2d 664, 666 (Ct. App. 1992).
Under the plain language
of § 351.08, Stats., any person
convicted of operating a motor vehicle while revoked, "shall, in addition
to any penalty imposed" receive an additional fine and jail term. Unlike § 939.62, Stats., § 351.02, Stats.,
does not state that the HTO penalty shall be applied when the maximum penalty
is imposed. Rather, it states that the
additional penalty shall be in addition to any penalty imposed. Scrivner's argument is therefore rejected.
Next, Scrivner argues
that the trial court misused its sentencing discretion by applying the judicial
district's sentencing guidelines when imposing the recommended sentence on the
OWI conviction. He contends that the
legislature has not granted any express authority for the adoption of these
guidelines, but instead the guidelines were created by the judges within the
district and violates the separation of powers doctrine. Additionally, he argues that these judicial
district guidelines differ from the statutory scheme for sentencing and
consequently violate the separation of powers doctrine.
In response to
Scrivner's argument, the State refers this court to § 346.65(2m), Stats., where the legislature in ch.
346 (Rules of the Road) specifically required judicial administrative districts
to establish sentencing guidelines for violations of §§ 346.63(1)(b) or (5), Stats.
Section 346.65(2m) provides:
In imposing a sentence under sub. (2) for a
violation of s. 346.63(1)(b) or (5) or a local ordinance in conformity
therewith, the court shall review the record and consider the aggravating and
mitigating factors in the matter. If
the level of the person's blood alcohol level is known, the court shall
consider that level as a factor in sentencing.
The chief judge of each judicial administrative district shall adopt
guidelines, under the chief judge's authority to adopt local rules under SCR
70.34, for the consideration of aggravating and mitigating factors.
This
court is unpersuaded that the trial court's application of these guidelines
impinges on the legislature's authority when in fact the legislature has
encouraged, if not mandated, the use of these guidelines. In the judicial administrative district, the
circuit courts have developed a framework to provide guidance and uniformity of
sentencing on these OWI convictions within the district. The trial court's imposed sentence on the
OWI conviction falls within both the legislative and judicial districts'
parameters and does not constitute a misuse of its sentencing discretion.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.