By: dmc-admin//July 2, 2001//
However, given the state of the record, we cannot determine whether defendant’s driving record supported a criminal sentence even without consideration of his HTO status. We reverse the decision of the court of appeals and remand to the circuit court for such a determination.
As a consequence of the staggered implementation of 1997 Wis. Act 84, the case before us presents us with a blend of the old and the new. Defendant was convicted under the prior statutory scheme, so the definition of the offense and the appropriate level of punishment are defined by since-supplanted statutory provisions. However, because of the DOT’s early implementation of sec. 351.09, this case also presents us with issues involving the new statutory scheme, namely the effect of the Department’s rescission of defendant’s HTO status on his sentence.
On remand, the circuit court is to determine whether defendant’s conviction falls under sec. 343.44(2)(e)2, in which case only a civil forfeiture may be imposed, or whether sec. 343.44(2)(e)1 applies and allows for the imposition of a criminal sentence.
Even though defendant entered a plea of no contest, we reject the State’s argument that he waived this challenge to his sentence. The express statutory mandate in sec. 973.13 to alleviate all maximum penalties imposed in excess of that prescribed by law applies to faulty repeater sentences and is not “trumped” by a procedural rule of exclusion.
DISSENTING OPINION: Crooks, J., joined by Wilcox, J., and Prosser, J.: I cannot join the majority opinion because it abandons a long-standing rule of Wisconsin law – that a plea of no contest waives all non-jurisdictional challenges. Further, it is in fact clear from the record that defendant had not been reinstated nor sought rescission of his HTO status, and that criminal sanctions were thus appropriate for his OAR/OAS conviction.
Review of a Decision of the Court of Appeals, Bradley, J.
Reversed and remanded.
99-3142-CR State v. Hanson
Attorneys:
For Appellant: James B. Connell, Wausau
For Respondent: Kathleen M. Ptacek, James E. Doyle, Madison